Insurance Australia Limited t/as NRMA Insurance v Gilbert

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Gilbert [2024] NSWPICMP 261
CLAIMANT:	Jonathan Gilbert
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Wing Chan
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	29 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Hyde-Page dated 16 February 2022; claimant injured in a high speed motor bike accident on 26 February 2003; claimant was an off duty policeman wearing all safety equipment when the collision occurred and he was thrown from his bike; claimant was taken to hospital by ambulance but found not to have suffered any fractures and only had multiple abrasions down his left side and leg and was discharged home; claimant was off work for six weeks; claimant developed symptoms around his left hip and groin around 2007 and 2009 but was not disabled and had made no prior complaints; claimant had scans of his left hip in 2015 and was reported to be developing osteoarthritis; claimant had an incident in 2007 when lifting heavy items from the boot of a police car and suffering immediate sharp pain in his left groin/leg area; claimant’s pain in 2015 was put down to a left inguinal hernia; claimant suffered further injury to his left hip in November 2020; claimant submitted that the development of osteoarthritis was a gradual onset; insurer denied the claimant suffered injury to his left hip in the 2003 accident; claimant medically examined and Panel doctors satisfied that the need for the claimant to undergo hip resurfacing was directly caused by the accident in 2003; dissenting reasons of Member Bolton who was not satisfied that the claimant suffered a compression injury to the left hip and that an osteoarthritic condition developed from 2003; Held – by majority decision, certificate of MA Hyde-Page revoked and claimant found by the Panel to have 20% whole person impairment.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Hyde Page dated 16 February 2022. 2. The Panel by majority finds the following injuries: (a) left hip- post-traumatic osteoarthritis, and (b) skin scarring-left hip, give rise to a total whole person impairment assessment of 20%.

STATEMENT OF REASONS

INTRODUCTION

The insurer seeks a review of the certificate issued by Medical Assessor Hyde Page (the Medical Assessor) dated 16 February 2023. The certificate was issued to the parties on
23 February 2023.
The Medical Assessor found that the following injuries:
(a) left hip- post-traumatic osteoarthritis, and
(b) skin scarring-left hip,
gave rise to a whole person impairment (WPI) assessment of 14%.
The grounds for review are summarised as follows:
(a)   failure to address the mechanism of the hip injury and provide a path of reasoning;
(b)   failure to address causation of the hip injury and provide a path of reasoning;
(c)   failure to provide a path of reasoning regarding the use of a diagnosis-based estimate, and
(d)   failure to properly apportion for pre-existing impairment.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) left hip – post-traumatic osteoarthritis left hip, Pincer’s type femoroacetabular impingement, and
(b) skin scarring – left hip (TEMSKI).

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

The accident

The accident occurred on 26 February 2003. The claimant, a motorbike patrol policeman, he was riding a motorbike home from work when a car doing a right hand turn, cut in front of him. He hit the car and was thrown off his bike, heavily onto his left hip and side. He was wearing some protective clothing.
The claimant was taken by ambulance to the Emergency Department of John Hunter Hospital in Newcastle. He was found to have not suffered any fractures around his left hip and leg, but he had multiple grazes down his left side and leg which needed dressings. He was discharged from hospital after a few hours and went home.
The claimant was off work for approximately six weeks and recovered uneventfully.

Onset of injury

After the claimant returned to work he performed normal duties as a police highway patrolman. He did however develop symptoms around his left hip and groin around 2007 and again, around 2009 but not such that he was disabled.
In 2015 the claimant underwent scans of his left hip and understood that he was developing osteoarthritis. There was no acute occurrence bringing this about. The claimant continued working as a highway patrolman for several years thereafter, without apparent inconvenience.
In 2020 the claimant was exiting a police car when he suffered acute severe left hip pain. He came under the care of Dr Narasimhan, orthopaedic surgeon. Following investigation, by X-ray, he was informed that he had advanced osteoarthritis of the left hip and needed a hip replacement.
The claimant proceeded to come under the care of Professor Kohan, orthopaedic surgeon, who performed a procedure of left hip resurfacing in May 2021. The claimant was off work for a period of time following this procedure. He returned to work in November 2021 and has continued reasonably uneventfully thereafter.

Insurer’s submissions

In support of the insurer’s application for review, the insurer has given a detailed analysis of the certificate and reasons of the Medical Assessor.
The insurer says that the Medical Assessor recorded that the claimant was thrown off his bike heavily onto his left hip and side. He was wearing protective clothing but not, as the Panel understands, a leather jacket and full gloves covering the fingers.
The insurer has provided a summary of the relevant contemporaneous evidence dealing with the mechanism of injury are as follows:
(a)      the police report described the claimant falling heavily on the road surface but does not describe what part of the claimant’s body fell heavily onto the roadway;
(b)      the statement which the claimant provided to police dated 18 June 2003 at page 24 of the claimant’s bundle does not describe how the claimant fell on the roadway;
(c)      the ambulance report recorded the claimant stating to ambulance officers that he “rolled” onto the roadway causing abrasions to the left hip. The injuries identified by ambulance officers were abrasions localised to the left arm, hip and right hand. “Nil other apparent injuries” were identified. The report noted minor damage to the claimant’s helmet, and
(d)      the records of John Hunter Hospital do not identify a traumatic injury to the left hip, only abrasions. They do not record a history consistent with an alleged impact or compression injury to the left hip. The only soft tissue injury diagnosed was that to the right hand. Examination of the claimant did not reveal any tenderness over the left hip or pelvis.
The insurer noted that the Medical Assessor made a factual conclusion that the mechanism of injury involved a heavy fall onto the claimant’s left hip. The insurer says that factual finding is inconsistent with the contemporaneous evidence.
It is the insurer’s submission that there is an error on the face of the record in that the Medical Assessor gave determinative significance to an unverified and incorrect version of how the claimant sustained an injury.
The insurer further submits that the Medical Assessor did not explain why he had accepted what appears to be the claimant’s version that he fell heavily on his left hip. The insurer says that version was provided to the Medical Assessor 20 years after the accident. The insurer says that the Medical Assessor gave no regard to, or justification for disregarding the contemporaneous evidence.
The insurer says that the contemporaneous evidence is suggestive of the claimant rolling onto the roadway instead of falling heavily to cause a jarring or compressive injury.
As to causation, the insurer submits that the Medical Assessor’s acceptance that the accident caused the claimant to develop progressive osteoarthritis is based on factual error and acceptance of the opinions of Professor Kohan and Dr Poplawski.
The insurer refers to the relevant history recorded by the Medical Assessor where he said:
“He hit the car and was thrown off his bike, heavily onto his left hip and side. … He was found to have not suffered any fractures around his left hip and leg, but he had multiple grazes down his left side and leg which needed dressings. He ended up having six or eight weeks off work, having treatment for his soft tissue injuries and grazes, which slowly settled. By the time he got back to work, he had made a reasonably good recovery.
He then worked uneventfully for the next few years but states that he did develop some symptoms around his left hip and groin in 2007 and 2009.
Then, in about 2015 he actually had scans of his left hip and was told that he was developing some osteoarthritis.”
The insurer noted that the Medical Assessor referred to a report of Professor Kohan dated
22 January 2021, in which he concluded that the likely cause of the claimant’s severe left sided osteoarthritis, compared to the right, was a compression injury in 2003 causing damage to the articular surface.
The insurer says that the Medical Assessor failed to consider the basis of Professor Kohan’s conclusion. The insurer submits that conclusion was based on an erroneous set of facts regarding the mechanism of injury. Professor Kohan relied on the claimant’s description of the accident given to him almost 18 years after the accident. The insurer says that Professor Kohan had no regard to the contemporaneous evidence when forming his conclusion as to the cause of the claimant’s injury.
The insurer submits that the Medical Assessor failed to address or identify his path of reasoning in relation to Professor Kohan’s inconsistent approach to causation.
The insurer referred to Professor Kohan’s report to a workers compensation insurer dated
5 March 2021 and says that Professor Kohan was reporting in relation to a workers compensation claim made in relation to an injury which occurred on 23 November 2020.
The insurer submits that for the purposes of preparation of that report, Professor Kohan was asked whether the symptoms at the time were due to the natural progression of the claimant’s osteoarthritis. The insurer says that Professor Kohan provided a contradictory opinion as to causation of the claimant’s injury. He stated that, “the original symptoms started to develop in 2007”.
The insurer says that Professor Kohan did not reference the 2003 accident in his report to the workers compensation insurer. Rather, the insurer submits that the Medical Assessor has provided a clear and unequivocal opinion that the claimant’s osteoarthritic symptoms began to develop in 2007.
The insurer submits that the Medical Assessor simply stated that he accepted the conclusion of Professor Kohan and provided no path of reasoning to explain or justify how the subject accident in 2003 caused the arthritic symptoms giving rise to the need for hip resurfacing.
The insurer says that a similar submission is made with respect to the acceptance by the Medical Assessor of the opinion of Dr Poplawski.
The insurer says that the question posed to Dr Poplawski in relation to causation of injury in his report of 1 July 2022 was leading. The insurer says that ultimately, Dr Poplawski conceded that the damage to the femoroacetabular joint may have occurred without the purported compression or pincer type injury in 2003 he described by Dr Poplawski.
The insurer says that the Medical Assessor failed to adequately address the possibility presented by Dr Poplawski that the claimant’s symptoms were following its natural course or whether any of the subsequent injuries caused the more severe left hip osteoarthritis. The insurer says that there is no path of reasoning to explain why the Medical Assessor preferred one of Dr Poplawski’s conclusions over the other.
The insurer submits that the Medical Assessor did not provide a path of reasoning to explain the absence of any symptoms related to the progressive osteoarthritis over the four years between 2003 and 2007. The insurer noted that there was an absence of any symptoms during this period. The insurer says that the claimant failed to address the absence of symptoms during this period. The insurer submits that failure is tantamount to a failure to provide a path of reasoning.
The insurer submits that it would be erroneous to conclude that the 2003 accident was the sole or even a major contributing cause of an aggravation that led to the onset of progressive osteoarthritis.
The insurer submits that the Medical Assessor failed to address the insurer’s submissions on causation or the possibility that the subsequent intervening events caused the claimant’s osteoarthritis. The insurer places emphasis on the absence of complaints or symptoms between the date of the accident and the first intervening event in 2007.
The insurer says that the Medical Assessor failed to provide a path of reasoning regarding the use of a diagnosis-based estimate. The insurer noted that the Medical Assessor assessed the claimant’s impairment using diagnosis-based estimates. The insurer says that he used the diagnosis-based estimate for hip replacement surgery.
The insurer says that the claimant underwent hip resurfacing and not a hip replacement, which it says are two different procedures.
The insurer submits that a hip replacement necessitates the removal of the femoral head which is replaced with a metal ball and stem which is inserted into the femur. Hip resurfacing will lead to some bone being trimmed back depending on the amount of damage, however the head of the femur is covered in a metal plate. The insurer submits that the Medical Assessor did not provide a path of reasoning or any justification to explain why he chose to use the diagnosis-based estimate for a hip replacement.
The insurer also made submissions about apportionment for pre-existing impairment. The insurer said that the Medical Assessor accepted that the femoroacetabular pincer impingement present on both the uninjured right hip as well as the injured left hip is a developmental abnormality. He accepted that the developmental abnormality contributed to the claimant’s impairment, and he subtracted one tenth for the presence of this pre-existing developmental condition.
The insurer referred to the Motor Accident Guidelines (Guidelines). The insurer submitted that the Guidelines deal with how pre-existing impairment is to be assessed and which state:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value”
The insurer says that after accepting that the claimant suffered from pre-existing impairment, the Medical Assessor has failed to calculate the claimant’s pre-existing impairment.
The insurer submits that the proper approach would be to use Table 62 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) on page 83 to determine the extent of any pre-existing impairment caused by arthritis. That assessment of impairment would then need to be deducted from the current assessment of impairment.

Insurer’s submissions for whole person impairment dispute

The claimant suffered several subsequent injuries involving his left hip and it is alleged that the subject accident caused an aggravation or acceleration to the claimant’s underlying arthritic changes. That contention is disputed by the insurer.

Injuries to be assessed

The claimant seeks to have two injuries assessed, namely the alleged left hip injury and scarring.

Causation of the hip injury

The insurer provided the following summary of the claimant’s injuries.
The subject accident:
(a)   ambulance officers at the scene of the accident. The primary complaint was of abrasions which were localised to the left hip, left arm and right hand. Mechanism of injury described as “rolled on road”. “Nil other apparent injuries” were identified;
(b)   examination conducted at John Hunter Hospital suggested all observations were normal. The diagnosis was a soft tissue injury to the right hand with multiple abrasions to the same areas identified in the ambulance report as well as both knees. On examination of the pelvis and lower limbs, no tenderness was identified, and only abrasions were recorded, and
(c)     the claimant was certified fit to return to pre-accident duties on 11 March 2003.
The first alleged aggravation:
(a)   on or about 10 December 2007 the claimant was lifting a box, vests and witches hats out of a boot of a vehicle in a police station and felt a sharp pain in his left groin or leg, and
(b)   the pain persisted and a left inguinal hernia was identified and treated.
The second alleged aggravation:
(a)   Waratah Medical Centre records contains a consultation note of Dr Kevin Walters dated 30 January 2015 which identified left groin pain and a known hernia. There was a discussion about whether the groin pain was caused by the hernia. The claimant was referred for an X-ray and ultrasound of the hip;
(b)   the imaging identified a moderate osteophyte formation at the margins of the femoral head and acetabulum. There were moderate degenerative changes in the left hip. An ultrasound was taken on the same day which revealed a small direct inguinal hernia. Dr Walters concluded that the cause of the pain was possibly a hernia or osteoarthritis. No connection was made to the subject accident, and
(c)   after a period of reduced capacity in 2015, the claimant was certified fit for pre-injury duties by Dr Walters on 22 May 2015. The claimant’s hip pain was mentioned in one other consultation on 24 August 2017 and it was described to have settled by Dr Walters.
The third alleged aggravation:
(a)   it is alleged that the claimant injured his hip while opening a door of a police vehicle while carrying a HWP kit bag on 23 November 2020;
(b)   the claimant attended on Dr Wickremaratchy of Fairholme Surgery on
24 November 2020. He stated that osteoarthritis was uncovered while investigating a left inguinal hernia in 2015 and that the condition flared up a week ago while at work;
(c)   the claimant was referred to Dr Narasimhan, orthopaedic surgeon and he was seen on 13 January 2021. Dr Narasimhan did not identify a causal connection between the claimant’s injuries and the subject accident;
(d)   the claimant was referred to Professor Kohan, orthopaedic surgeon who provided a report dated
22 January 2021. Professor Kohan formed a view that the origin of the claimant’s symptoms arose from the subject accident and heavy reliance was placed on the claimant’s description of the accident. The description which the claimant provided suggested that he sustained a direct lower limb injury in the subject accident, particularly a compression injury. It will be submitted that the history accepted by Professor Kohan is not consistent with the actual history and mechanism of injury;
(e)   Professor Kohan formed a view that the mechanism of injury which the claimant described during the subject accident would have accelerated arthritic changes in the claimant’s hip, and
(f)    Professor Kohan contradicts his own opinion as to the cause of the claimant’s symptoms in a report to EML dated 5 March 2021. Professor Kohan stated that the “original symptoms started to develop in 2007”. The insurer says that the subject accident is not even considered by Professor Kohan to be the cause of the claimant’s symptoms in his report to a workers compensation insurer.

The insurer submits that the subject accident did not case an injury to the claimant’s left hip and that the subject accident did not aggravate the claimant’s underlying osteoarthritis.
The insurer says that the contemporaneous medical evidence ought to be preferred in circumstances where the time between the accident and subsequent histories would have likely eroded the claimant’s memory of the accident.
The insurer says that there is no contemporaneous evidence of a direct injury to the claimant’s hip, or a compression type injury as Professor Kohan accepts. It is submitted that if the mechanism of injury was such that there was a compression injury, the force involved, particularly at the speed the claimant was travelling, would have caused significant and immediate pain. The insurer says that such pain would have resulted in direct complaints to ambulance officer or hospital staff. At the very least, the insurer says that it would have caused the claimant to have symptoms beyond a period of two weeks.
The insurer says that there is an absence of any complaints of hip pain for a significant period after the accident. The insurer disputes that the 2007 symptoms involved hip pain resulting from osteoarthritis. It is submitted that those complaints related solely to the claimant’s hernia.
It is submitted that Professor Kohan’s opinion can carry no weight in circumstances where there is an absence of any positive or direct evidence of an injury to the claimant’s hip which could have caused an aggravation to any underlying osteoarthritis.
The insurer says that the next event, in 2015, 12 years after the accident, is the first point in time that degenerative changes in the claimant’s hip were considered.
The insurer says that Professor Kohan refers to a time scale to support his conclusion that the claimant’s symptoms were causally related to the subject accident. However, the insurer says that time scale was completely inconsistent with the 12-year gap between the subject accident and the commencement of complaints. The insurer says that Professor Kohan fails to explain how the ‘time scale’ is not more consistent with the 2007 or 2015 incidents being the precipitating injury.
The insurer submits that Professor Kohan has attempted to assign liability against multiple insurers and in doing so he has departed from his earlier reasoning. The insurer refers to the reports dated 22 January 2021 and 5 March 2021.
In the report of 22 January 2021, the insurer says that Professor Kohan provided reasoning as to why the subject accident was the cause of the claimant’s symptoms. However, in his report of 5 March 2021, the insurer says that there was no mention of the subject accident and the aim of the report appears to have the workers compensation insurer accept liability to compensate the claimant for an injury which occurred on or about 23 November 2020.
The insurer says that in his report of 5 March 2021, Professor Kohan accepted that the work incident on 23 November 2020 exacerbated the claimant’s underlying osteoarthritis. In addition, Professor Kohan stated that the origin of the claimant’s symptoms started in 2007 and he referred to that incident in 2007 as the index incident, not the subject accident. The insurer submits that Professor Kohan’s opinion cannot be relied upon insofar as it relates to the issue of causation due to the internal inconsistency of his opinion.
The insurer says that X-ray imaging of the pelvis and hip taken on 25 November 2020 revealed osteophytic lipping and a mild cam abnormality on the femoral head. It is submitted by the insurer that there is nothing in the imaging which suggests that the subject accident caused or aggravated the nature of the changes seen in any imaging. It is also submitted that the cause of the pathology identified in the imaging is related to either genetic deformities, repetitive injury during adolescence or repetitive impingement.
The insurer says that the opinion of Dr Poplawski, orthopaedic surgeon follows a consistent path to that taken by Professor Kohan. The insurer says that there is a clear lack of appreciation of the absence of any symptoms in the years between the subject accident in 2003 and the onset of symptoms in 2007.
The insurer submits that for the same reasons which we were submitted about Professor Kohan’s opinion, Dr Poplawski’s opinion ought not carry any weight on the issue of causation.
The insurer highlights that it is conceded by Dr Poplawski that that the damage to the femoroacetabular may have occurred without injury.
The insurer noted that Dr Poplawski referred to a report of Dr Myers dated 16 June 2015. The insurer says that it is clear that Dr Myers formed a differing opinion as to causation of the injury which is quoted in the question prepared for Dr Poplawski at number 12.
The insurer says that relevant quote was:
“I do not think Mr Gilbert has had an injury; he has osteoarthritis of the hip which I think is the cause of his pain” and “Mr Gilbert’s osteoarthritis of the left hip is a degenerative condition. It would not be caused by the incident that he describes.”
In summary, the insurer submits that causation of the claimant’s hip injury is not established and that the claimant’s impairment does not exceed the threshold.

Claimant’s submissions

Regarding the circumstances of the accident, the claimant described that as he came to the intersection, the insured car started to turn right in front of him. The claimant says that he applied the brakes of his bike and the back wheels skidded. He eased off the back brake to stop the back wheel from skidding and attempted to steer left. The insured car kept turning in front of him, causing the front of the claimant’s bike to collide with the front of the insured car and the bike went down onto the road throwing the claimant off.
In the claimant’s submissions, he says that he sustained the following injuries as a consequence of the accident:
(a)     left hip;
(b)     right hand;
(c)     abrasions to elbow;
(d)     abrasions to knuckles;
(e)     abrasions to wrist;
(f)     abrasions to both knees, and
(g)     surgical scar over the lateral aspect of the left hip and thigh extending two thirds of the way down the thigh estimated to be over 20cm in length. This was discoloured and stood out against the surrounding skin and was depressed in nature.
The claimant notes that the John Hunter Patient Health Record dated 26 February 2003 recorded under patient incident history, “Abrasions to (L) hip, (L) arms, (R) hand”.
The claimant says that the John Hunter Patient Health Record dated 26 February 2003 notes under ‘Team Leader summary’:
“Injuries identified so far:
Soft tissue injury to (R) hand
Multiple abrasions to (L) hip, Elbow, Knuckles, Wrist and both knees.”
The claimant acknowledges that no radiological investigations were carried out to the left hip to identify any underlying pathology of which could have arisen at the time due to trauma to the left hip.
The claimant submits that the claimant continued to have intermittent pain and discomfort of the left hip and noted a gradual onset of deterioration precipitated by the subject accident. However, the claimant submits that due to his stoic nature, he continued working and performing his activities of daily living, under what he submits was a veil of ignorance of the actual acceleration, aggravation and exacerbation of an underlying arthritic condition in the left hip.
The claimant submits that whilst in the course of his employment on 10 December 2007, he had been lifting a box, of vests and witches hats out of the boot of a vehicle when he felt sharp pain in his left groin/leg area. Since that time, the claimant says that he has had soreness to the area.
The claimant says that although he also suffered from pain in his left hip during this time, his main injury was his left groin.
The claimant says that he sought treatment at Waratah Medical Services at Morisset and was diagnosed with a “left inguinal hernia”.
The claimant says that from the incident of 10 December 2007 onwards, he continued to suffer from pain and symptoms in his left groin, left hip and left leg. Nevertheless, the claimant says that he was able to manage his duties of employment and activities of daily living despite experiencing symptoms.
The claimant relies on a report of Dr Walters dated 21 May 2015 which notes “hip pain from groin strain”.
The claimant says that as he continued to suffer from pain in his left groin, left hip and left leg, he lodged a recurrence of injury form with his employer in or around June 2012.
The claimant says that around January 2015, his symptoms in his left hip continued, and he sought treatment at Waratah Medical Services.
The claimant relies on the clinical note entries of Waratah Medical Services at Morisset. At 30 January 2015, the following is reported:
“Pain in L Groin, known hernia, but unlikely to be cause of pain
? Medial hip strain”
The claimant was referred to undergo scans for his left hip to investigate his pain and symptoms.
The claimant then had a CT scan of his left hip dated 4 February 2015 which the claimant says revealed moderative degenerative changes of the left hip.
The claimant says that the history on the scan report noted “two-year history of left hip pain”.
The claimant relies on an ultrasound of his left hip dated 11 February 2015 which he submits revealed small direct inguinal hernia, no joint effusion, no trochanteric bursal effusion, lymph nodes in the left groin and small right inguinal hernia of fat.
The claimant says that the history noted on the scan report notes “? tendonitis or labral tear”.
The claimant says that he then lodged another recurrence form with his employer following gradual and frequent increase in pain in his left groin and left hip on or around
26 March 2015.
The claimant says that he had suffered reoccurrence of pain and symptoms in his left groin and left hip which led him to request a reopening his worker’s compensation claim with the worker’s compensation insurer.
The claimant has referred to an X-ray of his left hip on 21 November 2020 of bilateral hips which indicated advanced arthritic changes on the left side. The right hip appears to be relatively well preserved. Features of femoroacetabular impingement are present bilaterally, with pincer types of configurations.
Then, on 23 November 2020, the claimant says that he was opening the door of a police vehicle carrying highway patrol kit bag, and as he turned he experienced a sharp pain in his left hip with loss of strength, almost causing him to fall. The pain stayed with him whilst he drove back to Singleton from Howlong (after a border closure trip).
The claimant then refers to a report of Dr Narasimhan of 13 January 2021 when he said the claimant had been involved in a motorbike accident in 2003 following which he noticed left hip pain which had been getting worse over time. The doctor went on to say;
“X-rays show advanced OA in the left hip. He probably has had exacerbation and triggering of his OA post injury in the left hip , which probably impacted on his labrum
Health”
The claimant says that Dr Narasimhan noted he was a candidate for hip replacement and referred him to Professor Kohan who performs such operations.
The claimant consulted Professor Lawrence Kohan, on 20 January 2021. The claimant says that Professor Kohan noted the following in his report dated 22 January 2021:
“In terms of origin, the injury that he experienced in 2003, which, by his description, was a compression injury, impacting his femur into the acetabulum, this type of injury is likely to have accelerated the progression of arthritic changes by damaging the articular surface. The time scale is consistent. The other hip, which also has features of femoral -acetabular impingement, does have some early degenerative change, but not along the lines of that seen on the left hip.”
The claimant consulted Professor Kohan again on 16 February 2021. The claimant says they discussed an MRI report dated 25 January 2021, and concluded with an arrangement for admission to hospital for left hip resurfacing on 18 March 2021, upon approval of the workers compensation insurer.
The claimant submits that Professor Kohan wrote to the workers compensation insurer on
5 March 2021 and said;
“The current symptoms are not a natural progression of the underlying osteoarthritis. There is a specific event following which the pain and quantity changed. This is clearly not a random event. While the original symptoms started to develop in 2007, up until this index incident, the symptoms were under control in spite of his normal activities. Simple paracetamol was all that was required. The reason why this specific event led to this aggravation, I cannot determine.”
The claimant says that the workers compensation insurer subsequently approved the proposed surgery deeming it reasonably necessary. On 13 May 2021, at St Luke’s Private Hospital, under the care of Professor Kohan, the claimant underwent the left hip resurfacing surgery.

Claimant’s submissions on causation

The claimant says that he relied on the opinions of his treating general practitioner (GP), treating orthopaedic surgeons Professor Kohan and Dr Narasimhan, and IME orthopaedic surgeon Dr Zbigniew Poplawski, who all are in consensus as to the primary pleading of injury that is that, the claimant sustained an injury to his left hip in the subject motor vehicle accident by way of compression trauma to the left hip, which caused an acceleration, exacerbation and aggravation of any pre-existing underlying process of osteoarthritis, initiating the progression of degenerative changes by virtue of damage to the articular surfaces and as such materially contributing to the need for hip resurfacing procedure, and ergo Mr Gilbert’s current impairment.
The claimant says that a proper assessment of causation requires a consideration of the extent to which he had been experiencing symptoms in his left hip prior to the accident (see Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077) and also a medical analysis as to the variation in the extent of osteoarthritis evident on the radiological investigations between the injured left hip and the contralateral gip, which in this case shows a dramatic progression of arthritis in the injured hip.
Regarding the late formulation of the claim, the claimant has made further submissions.
The claimant says that whilst it is agreed that he was aware of an injury which occurred at the time of the subject accident, he was not aware of the extent of the injury, the nature of the injury, the pathology attributable to the injury, the degenerative effect of the injury and the impending severity of which the injury would manifest and envelope into over the course of time. The claimant submits that based on the evidence both from the claimant and the objective evidence, the claimant had suffered abrasions to the left hip, that was what was known of the left hip condition at the time of injury.
The claimant says that he was aware of trauma to his hip with abrasions, but his treating doctors did not perform any contemporaneous radiological investigations, and as such provided no information or advice to him about the pathology in the left hip.
The claimant says that this is a medical condition, and what steps he takes would only be reasonable if they are contingent and supported by the medical opinion and advice provided to him at the time.
The claimant submits that the type of injury which is now being categorised by his treating doctors and Dr Poplawski is trauma induced acceleration of left hip osteoarthritis causally related to the subject accident in 2003.
The claimant says that without the identification of the left hip injury being more then left hip abrasions, a reasonable person in the position of the claimant, being a layman with no knowledge or expertise in medicine and completely reliant on the advice and direction of his treating doctors, would not have identified the seriousness of the injuries until such time as the symptoms manifested according to the transient nature of the progressing acceleration of the osteoarthritis in his left hip, and until such time as a treating doctor advised that such acceleration of the osteoarthritis in the left hip was attributable to blunt force trauma occasioned by the 2003 motor vehicle accident.
The claimant says that this factual and medical matrix is and was so surreptitious in its development that even the claimant’s treating doctors were not able to make the link until recently. The claimant says that if the treating doctors did not recognise the seriousness of the left hip condition, why would the claimant be expected to do so? The claimant submits that the answer should be, that he is not expected to do so.
The claimant submits that it is an untrue statement, when the totality of the history and evidence is considered, that he was aware that he had incurred an injury at the time of the accident.
The claimant says that with each complaint of hip pain, he was guided by his treating doctors, which on every occasion, failed to diagnose a left hip condition and causatively link it to the 2003 accident.
The claimant says that with each complaint being premised by a separate ancillary incident and/or event such as:
(a) pain into left hip form groin, diagnosed as pain coming from the hernia/groin, completely irrelevant to the left hip injury, and
(b) workplace incidences causing a flare up in the pain. The focus was on the specific incident causing the flare up as opposed to a consideration of the previous trauma to the left hip as being the underlying cause of the accelerated progression in the left hip osteoarthritis.
The claimant has addressed the assertion by the insurer that the claimant’s submission that he was not aware of the causal link between the hip injury and the accident is implausible. The claimant says that he was immediately taken to John Hunter Hospital and was reviewed by medical professionals who advised him of which scans to take and what injuries he had sustained. The claimant says that it is unreasonable, and dangerous from a perspective of equity and fairness, to impose such a burden of knowledge and responsibility on the claimant to do more than what his treating doctors have done.
The claimant says that the proposition by the insurer that he ought to have been aware that his left hip condition is caused by the subject accident is inherently self-contradictory with the totality of the insurer’s position. The claimant says that the insurer has denied that the injury to the left hip is caused by the subject accident, but justifies their submissions that the claimant should have been aware of the causal nexus.
The claimant says that if he ought to have known of the causal nexus, then it follows, on the same logic employed by the insurer, that the causal nexus is of such a nature, that a layman without medical expertise on a background of a left hip condition which does not materialise in its current condition or at the condition it materialised as at 2021, that the claimant should have deciphered that contrary to contemporaneous medical opinion, the progression of the osteoarthritis was caused by the subject motor vehicle accident. The claimant submits that this cannot be found to be the expectation placed on the claimant or a person in his position.
In the course of the claimant’s assessment, he has provided statutory declarations (statement). At paragraph 23 of the claimant’s statement dated 27 September 2022, he states, “I would have pain in my left hip however it was intermittent and sporadic.”
The claimant submits that noting his statement, the insurer’s assertion that the claimant was constantly focussed on managing his symptoms and preventing aggravation is firstly incorrect, and a misconceived construction of the claimant’s testimony. Secondly, the claimant submits that the insurer’s assertion is internally incongruent with the claimant’s statement that the pain was intermittent and sporadic. The claimant says that if the pain was intermittent or sporadic then so too would be the management of the pain. The claimant says that this is evident in the clinical records, which demonstrate a history of sporadic reporting.

The claimant submits that he has referred to all the workers compensation claims made by him since the accident in 2003. The claimant says that the prevention of aggravation and further injuries related to the claimant’s body as a whole and not simply the left hip, which was not diagnosed as an injury until 2021.
The claimant submits that he continues to explain that at that time there were no investigations performed by his treating practitioners, and no diagnosis of his left hip condition.
The claimant refers to the insurer’s submission stating;
“It is submitted that the frequency and nature of the aggravations would have caused a reasonable person in the claimant’s position to seek a second opinion.”
The claimant submits that this is an unfounded assertion. The claimant says that it is unclear from this assertion why a reasonable person in the claimant’s position would seek a second opinion when he had actually been diagnosed with a small hernia, which was pathologically objective and was detected on imagery. The claimant says that the pain of the hernia at the time seemed to be proportionate with a small hernia.
The claimant submits that the assertion of the insurer assumes that a reasonable person must be inherently speculative of his expert advice provided by his treating medical practitioners. The claimant says that this is obviously incorrect.
The claimant submits that he did not know that he had sustained significant injury. He says that he did not know he had sustained permanent injury of any nature. The claimant submits that the significance of his injury was only realised in 2021 upon obtaining his first orthopaedic review and consultation.
The claimant says that it was not until January 2021, 18 years post-accident, that he was finally referred to a specialist for review and opinion.
The claimant says that on 13 January 2021, Dr Narasimhan reported:
“He was involved in an MBA in 2003 following which he noticed left hip pain
that has been gradually getting worse with time.
X-rays show advanced OA in the left hip. He probably has had exacerbation
and triggering of his OA post injury in the left hip , which probably impacted
on his labrum health.”
The claimant says that this was his first diagnosis from a treating doctor. His condition had progressed to the degree it required surgical intervention.

Claimant’s statutory declaration

Regarding the accident and injuries suffered by the claimant, he provided a statutory declaration dated 27 September 2022.
The claimant said;
“As I came to the intersection, the vehicle at fault began to turn in front of me. I applied my brakes of my bike however my back wheels began to skid. I eased off the back brake to stop the back wheel from skidding and attempted to steer left. The vehicle at fault kept turning in front of me and as a result, the front of my bike collided with the front of the vehicle at fault. Following this, my bike went down the road and I was thrown off my bike.
I was forced to take evasive action due to the actions of the vehicle at fault turning right across my path.
…
I had suffered multiple abrasions to my left hip, left thigh, left arm, left elbow, knuckles, left wrists, both knees and right hand.
My injuries caused me pain, discomfort and difficulties, especially in my left hip.
Whilst at John Hunter Hospital, no radiological investigations were performed to my left hip.”
The claimant said further;
“From my motor vehicle accident in 2003 to 9 December 2007, I would have pain in my left hip however it was intermittent and sporadic. At this point in time, I had not undergone a scan to my left hip and as a result, I was unaware of the actual pathology in my left hip. As the pain was intermittent, my priority was to focus on managing my symptoms as well as preventing my injuries from further aggravation.
…
Whilst in the course of employment on 10 December 2007, I suffered an injury. During this time, I had been in the basement of the Police Station and had been lifting a box, vests and witches hats out of the boot of a vehicle. As I had been doing this, I felt immediate and sharp pain in my left groin/leg area. My left groin and left leg became sore.
I also felt some pain in my left hip however the main area where I was experiencing pain was inn my left groin and left leg.
Following the above, I sought treatment at Waratah Medical Services at Morisset.
To my understanding, I had been diagnosed with a left inguinal hernia.
Although I continued to experience intermittent pain and symptoms in my left groin, left hip and left leg, I was able to somewhat manage my employment duties as well as my daily activities.
Again, my focus during this time was returning to a normal life without pain and symptoms. To be specific, from 2007 up until 2012, I focused on recovery, employment and performing my daily activities.”
The claimant continued in his statement to say;
I continued to suffer from ongoing pain and symptoms in my left hip.
As such, in or around January 2015, I sought treatment at Waratah Medical Services.
I was then referred for radiological investigations for my left hip.
In or around February 2015, I underwent a CT scan of my left hip which to my understanding, revealed moderate degenerative changes in my left hip.
In or around February 2015, I also underwent an ultrasound scan of my left hip which to my understanding, revealed a small direct inguinal hernia, lymph nodes in the left groin and small right inguinal hernia of fat.
As I continued to suffer from ongoing pain and symptoms in my left hip, I lodged another recurrence from with my employer in or around March 2015.
Between March 2015 to November 2020, my focus was on returning to a normal life, free from pain and symptoms. I would manage my symptoms, focus on work, and focus on preventing my injuries from further aggravation.”
The claimant said further;
“In or around November 2020, I underwent an x-ray scan of my hips which to my understanding revealed advanced arthritic changes on the left side. To my understanding, the scan revealed that my right hip was relatively well preserved.
I also sought treatment and was referred to consult with orthopaedic surgeon, Dr Rishi Narasimhan.
To my understanding, Dr Narasimhan advice was that my left hip pain from my motor vehicle accident in 2003 had been exacerbated and aggravated.
Dr Narasimhan then recommended me surgery for my left hip and referred me to Professor Lawrence Kohan who was also an orthopaedic surgeon.
On or around 20 January 2021, I consulted with Professor Kohan.
To my understanding, Professor Kohan’s advice was similar to Dr Narasimhan in the sense that I had pre-existing arthritis in my left hip and that my motor vehicle accident in 2003 had accelerated the degeneration of this condition.
Professor Kohan recommended me analgesics, anti-inflammatory medication, walking aids and surgery for my left hip.
In or around late January 2021, I underwent an MRI scan of my left hip.
I discussed this MRI report with Professor Kohan on or around 16 February 2021 and to my understanding, Professor Kohan made a request from the worker’s compensation insurer for me to undergo surgery for my left hip.
The worker’s compensation insurer subsequently approved the proposed surgery and as a result, on 13 May 2021 I underwent left hip resurfacing surgery at St Luke’s Private Hospital under the care of Professor Kohan.
Following the surgery, I continued to suffer from ongoing pain and symptoms and continued to just focus on recovering and preventing my condition from aggravation.
I was then reviewed by Professor Kohan. on or around 19 May 2021 during which I was recommended crutches for balance and a post-operation scan.
I continued to suffer from ongoing pain and symptoms in my left hip and I was reviewed again by Professor Kohan on or around 23 June 2021. During this time, I was still relying on one crutch for balance and continued to limp.
On or around 15 October 2021, I was reviewed again by Professor Kohan. During this time, I complained of my discomfort and pain in my left hip.”
The claimant submits that he continued to have intermittent pain and discomfort of the left hip and noted a gradual onset of deterioration precipitated by the subject accident. It is submitted that he is stoic in nature and continued working and performing his activities of daily living, under a veil of ignorance of the actual acceleration, aggravation and exacerbation of underlying arthritic condition in the left hip.
Whilst in the course of employment on 10 December 2007, the claimant had been lifting a box, vests and witches hat out of the boot of a vehicle in the basement of the Police Station when he felt sharp pain in his left groin/leg area. Since that time, the claimant says that he has had soreness to the area. Although he also suffered from pain in his left hip during this time, his main injury was his left groin.
He sought treatment at Waratah Medical Services at Morisset and was diagnosed with a “left inguinal hernia”. Please refer to the claimant’s certificate of capacities enclosed.
From the incident of 10 December 2007 onwards, the claimant continued to suffer from pain and symptoms in his left groin, left hip and left leg. He was able to manage his duties of employment and activities of daily living despite experiencing symptoms.
The claimant refers to the report of Dr Walters dated 21 May 2015 which notes “hip pain from groin strain”. As the claimant continued to suffer from pain in his left groin, left hip and left leg, he lodged a recurrence of injury form with his employer in or around June 2012.
In or around January 2015, the claimant’s symptoms in his left hip continued, and he sought treatment at Waratah Medical Services. The claimant relies on the clinical note entries of Waratah Medical Services at Morisset. At 30 January 2015, the following is reported:
“Pain in L Groin, known hernia, but unlikely to be cause of pain,
? Medial hip strain”
The claimant was referred to undergo scans for his left hip to investigate his pain and symptoms.
A CT scan of left hip dated 4 February 2015 revealed moderative degenerative changes of the left hip. The claimant submits that the history on the scan report noted “two-year history of left hip pain”.
The claimant notes that an ultrasound of the left hip dated 11 February 2015 revealed, “small direct inguinal hernia, no joint effusion, no trochanteric bursal effusion, lymph nodes in the left groin and small right inguinal hernia of fat”.
The claimant notes the history noted on the scan report notes “? tendonitis or labral tear”.
The claimant says that he then lodged another recurrence form with his employer following gradual and frequent increase in pain in his left groin and left hip on or around
26 March 2015.
The claimant submits that he had suffered reoccurrence of pain and symptoms in his left groin and left hip which led him to request a reopening his worker’s compensation claim with the worker’s compensation insurer.
The claimant underwent an X-ray of his left hip on 25 November 2020 of bilateral hips which Indicated;
“advanced arthritic changes on the left side. The right hip appears to be relatively well preserved. Features of Femoro-acetabular impingement are present bilaterally, with pincer types of configurations.”
On 23 November 2020, the claimant experienced a sharp pain in his left hip with loss of strength, almost causing him to fall. The pain stayed with him whilst he drove back to Singleton from Howlong. His left hip was very sore both sitting in the car and when walking or attempting to move.
By letter dated 13 January 2021, Dr Narasimhan noted:
“He was involved in an MBA in 2003 following which he noticed left hip pain that
has been gradually getting worse with time.
X-rays show advanced OA in the left hip. He probably has had exacerbation
and triggering of his OA post injury in the left hip , which probably impacted on
his labrum health.”
Dr Narasimhan noted the claimant was a candidate for hip replacement and referred him to Professor Kohan whom he consulted on 20 January 2021. Professor Kohan noted the following in his report dated 22 January 2021:
“In terms of origin, the injury that he experienced in 2003, which, by his description, was a compression injury, impacting his femur into the acetabulum ,this type of injury is likely to have accelerated the progression of arthriticchanges by damaging the articular surface. The time scale is consistent. The other hip, which also has features of femoral -acetabular impingement, does have some early degenerative change, but not along the lines of that seen on the left hip.”
Professor Kohan recommended analgesics, anti-inflammatory medication, the use of walking aids, and hip resurfacing surgery.
The claimant consulted Professor Kohan again on 16 February 2021, and as confirmed by letter dated 19 February 2021, they discussed an MRI report dated 25 January 2021, and concluded with an arrangement for admission to hospital for left hip resurfacing on
18 March 2021, upon approval of the workers compensation insurer.
Professor Kohan provided a report to EML, the workers compensation insurer, dated
5 March 2021, in which he stated:
“The current symptoms are not a natural progression of the underlying osteoarthritis. There is a specific event following which the pain and quantity changed. This is clearly not a random event. While the original symptoms started to develop in 2007, up until this index incident, the symptoms were under control in spite of his normal activities. Simple paracetamol was all that was required. The reason why this specific event led to this aggravation, I cannot determine.”
The workers compensation insurer subsequently approved the proposed surgery.
On 13 May 2021, Professor Kohan performed the left hip resurfacing surgery.
On 19 May 2021, the claimant was reviewed by Professor Kohan, being one week following the surgery to the hip. He recommended crutches for balance and a post operative Doppler ultrasound to check for DVT.
On 23 June 2021, the claimant was again reviewed by Professor Kohan. He was still using one crutch for balance and walking with a mild limp.
On 15 October 2021, the claimant was again examined by Professor Kohan noting steady improvement in mobility, although there was ongoing discomfort.

Medical evidence

Regarding causation, the Medical Assessor said;
“It appears in February 2003, when he had a compression injury to the lateral side of left hip and leg when he came off his motorbike, he initially injured the left hip joint. Then over a period of nearly twenty years, he developed progressive osteoarthritis of the left hip that slowly became more painful. Due to the severity of his symptoms and the fact he now has severe osteoarthritis, he went ahead and had a left hip resurfacing in May 2021.
I am satisfied that the injuries in February 2003 were the instigating injury and cause of him to develop progressive osteoarthritis, where he subsequently has had the left hip
resurfacing.”
The Medical Assessor said the claimant had a WPI related to his left hip injury where he had a successful hip resurfacing. With reference to the AMA 4 Guides, Table 64 page 85, the Medical Assessor said that the claimant had a good result from his total hip replacement and assessed his WPI at 15%.
The Medical Assessor made a one tenth deduction for underlying femoroacetabular impingement that was seen on his X-rays and scans, similar to the right side. A one tenth deduction is 1.5%, and when subtracted from 15% gives 13.5%, which rounds up to 14% WPI.
The Medical Assessor assessed WPI as follows;

Body Part or System

AMA4 Guides/ Guidelines References

(chapter/ page/table)

Permanent (YES/NO)

Current

%WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to motor accident

Left hip

AMA4 page 85 Table 64

Yes

15%

1.5%

(1/10)

14%

Scarring

TEMSKI scale

Yes

The Medical Assessor said the claimant had evidence of femoroacetabular pincer impingement that is seen on both his left and right hip X-rays and was a developmental abnormality. It was commented that the claimant was already showing early osteoarthritis in the right hip, which this condition is likely to have contributed to. For this reason, the Medical Assessor concluded that one tenth the level of WPI was due to this developmental condition and partly explained why he developed the severe osteoarthritis in the left hip.
Dr Wickremaratchy clinical records are only from 9 April 2020.
There is a report to the claimant’s solicitor dated 6 April 2022 where it is said;
“●     Jonathan consulted me on Tuesday November 24 2020 for his left sided hip pain. It was a long standing problem.
Whilst investigating for a left inguinal hernia he was diagnosed Left hip OA, around 205. Hip pain flared up after working in the Victorian boarder in November 2020.
Pain was severe yesterday and started taking , Panadol Osteo with some effect.
He had no pain at rest. Pain increased on movements. Pain was radiating to left leg I advised analgesia, rest and X-ray of the left hip and pelvis ordered.
30 Nov 2020 I referred Jonathan to an orthopaedic surgeon. Dr. Rishi Narasimhan
Dr. Rishi is suggesting a hip replacement
Jonathan wanted to get a second opinion. and on 14 Jan 2021 - referral done to Dr Laurie Kohan. His pain in the left hip is gradually got [sic] worse. during this period.
·        Severe Osteoarthritis of the left hip.
·        Prognosis: Jonathan will need a hip replacement/ resurfacing to get back to normal life/activities.
·        Jonathan's condition has reached maximum medical improvement after the surgery and he has ongoing minor stiffness in the joint with some restricted movements.
Ongoingphysiotherapy might help to improve the stiffness and limitations.”
Workcover certificate of capacity dated 24 January 2020 noted a motor bike accident in 2003 and gradual onset of hip pain. Treating orthopaedic surgeon is reported as Dr Narasimhan.
All the certificates of capacity in the insurer’s bundle of documents from page 208-248, 352-375 are unsigned and not referred to in the submissions.
Professor Kohan report dated 22 January 2021. The claimant gave a history of a motorcycle accident in 2003 where he suffered an injury to his left lower limb and left hip.
He saw X-rays dated 21 November 2020 of both hips. Unfortunately, they were non-weight-bearing films. There were advanced arthritic changes on the left side. The right hip appeared relatively well-preserved. Features of femoro-acetabular impingement are present bilaterally, with cam and pincer types of configurations
Professor Kohan discussed osteoarthritis and its natural history. Osteoarthritis, when it starts, usually begins with episodic symptoms. As time passes, and as the condition progresses, the exacerbations of pain tend to become more marked, more frequent, and become precipitated by a lower level of physical activity. The remissions tend to become less frequent, and eventually, pain may be more or less constant. The time period over which this deterioration occurs is variable, and may depend on physical size, physical activities, previous injuries, and genetic predisposition, amongst others.
Professor Kohan said that in terms of origin, the injury that the claimant experienced in 2003, by his description, was a compression injury, impacting his femur into the acetabulum. This type of injury is likely to have accelerated the progression of arthritic changes by damaging the articular surface. He said the time scale was consistent. The other hip, which also has features of femoro-acetabular impingement, does have some early degenerative change, but not along the lines of that seen on the left side.
Dr Narashimhan report dated 13 January 2021. It was said that the claimant noticed left hip pain that had been gradually getting worse with time. He had difficulty in sleeping and doing his activities of daily living.
On examination the claimant walked unaided. The right hip was quite supple and had good range. X-rays showed advanced osteoarthritis in the left hip. Dr Narashimhan said that the claimant probably had an exacerbation and triggering of his osteoarthritis post injury in the left hip, which probably impacted on his labrum health.

EML/Police workplace ergonomic review assessment:       '
•      the claimant said that he sustained the injury on 23 November 2020 after he opened a police vehicle door and experienced sharp pain in left hip. He underwent X-ray and MRI scans which showed pre-existing osteoarthritis in left hip. He was reviewed by Professor Lawrence Kohan (nominated treating specialist) on 20 January 2021 and he confirmed that the incident aggravated the claimant’s osteoarthritis symptoms. NTS also recommended the claimant to undergo hip resurfacing surgery;
•      the claimant said that he had been attending suitable duties until March 2021;
•      surgery performed on 13 May 2021. The claimant said that he has been attending regular physiotherapy treatment since May 2021. The claimant also reported to have great improvements in recent months and currently he experienced minimal pain in his left hip, and
•      the claimant said that he returned to suitable duties on 7 November 2021 and advised that he would be reviewed by Dr Wickremaratchy on
10 November 2021. The claimant anticipated that Dr Wickremaratchy would issue a final certificate of capacity and clear him for pre-injury duties in the near future.
MRI left knee, including hip dated 27 January 2021 reported advanced osteoarthropathy of the hip with small effusion and extensive degenerative tear of the labrum the latter associated with loculated paralabral cyst formation.
Report of Prof Myers dated 16 June 2015. It was reported that in about 2008 the claimant was lifting a box of bullet-proof vests out of a car when he developed a sharp pain in the left groin which he reported.
Also around that time he over balanced on his pushbike being at times an on duty police officer on a pushbike and had a similar issue which he also reported. He saw his local medical officer at Bonnells Bay about that time and was told that he had a hernia for which he was referred to Dr McCallum, a Newcastle based surgeon.
However, the claimant had other personal intercurrent issues around that time and treatment of the hernia that he was said to have was left in abeyance. He then saw his local medical officer Dr Walters in April 2015 who told him that he had a left inguinal hernia.
Dr Walters organised a CT of the pelvis and an ultrasound of the hip. This was said to show a hernia.
Professor Myers viewed and saw the reports of a CT scan of the pelvis and the left hip performed in February 2015 and also an ultrasound of the left hip from that same month. He did not think that the claimant had an injury. He said that he had two conditions:
• osteoarthritis of the left hip, and
• a small, probably direct, left inguinal hernia.
Professor Myers said that the claimant had osteoarthritis of the hip which he thought was the cause of his pain. Professor Myers said the claimant’s condition of osteoarthritis of the left hip was a degenerative condition and not caused by the incident in 2007. He said that he had no evidence that the osteoarthritic changes seen in Mr Gilbert's left hip were related to his employment with the police force. There was no mention of a motor bike accident in 2003.
Professor Kohan report dated 5 March 2021. This report was in response to a letter from the claimant’s solicitors requesting information. Professor Kohan was asked:
“(the claimant) sustained a work-related injury on 23/11/2020 while opening the police vehicle door and experienced a sharp pain in his left hip. X-rays and MRI scans showed pre-existing osteoarthritis in his left hip. please confirm:
2. Has the incident on 23/11/2020 exacerbated his pre-existing osteoarthritis?
Yes.

3. Are the current symptoms due to the natural progression of the osteoarthritis? Please provide your medial rationale to support your answer.

The current symptoms are not a natural progression of the underlying osteoarthritis. There is a specific event following which the pain quality and quantity changed. This is clearly not a random event. While the original symptoms started to develop in 2007, up until this index
incident, the symptoms were under control in spite of his normal activities. Simple paracetamol was all that was required. The reason why this specific event led to this aggravation, I cannot determine.

4. Is the aggravation of the pre-existing osteoarthritis ongoing? If no, when did the aggravation cease?

Based on my initial examination of 20/01/2021 and my subsequent examination and report to you dated 16/02/2021, the aggravation is ongoing and has not ceased.

5. What is the likelihood that Jonathon would have required surgery at some point in his life if the incident on 23/1112020 did not occur? Please provide your medical rationale.

The development of hip osteoarthritis is not a dangerous condition, and it does not pose a threat to his life. On that basis, it is impossible to say whether he would have required surgery. Other options are available, starting with simple measures such as activity modification, weight loss and the use of external walking aids, progressing to analgesics and anti-inflammatory medications and occasionally intra-articular steroid injections. The necessity for surgical intervention is fundamentally related to quality of Iife issues.
On that basis, while it is highly likely that he would have chosen to proceed to surgical intervention given that he is at the younger end of the age spectrum where such severe symptoms may be experienced, it is not an absolute.”

There was no mention in the response of Professor Kohan to the accident in 2003.
The claimant consulted Professor Kohan again on 16 February 2021, and as per corresponding letter dated 19 February 2021, where there was discussion of the MRI report dated 25 January 2021. The claimant was admitted to hospital for left hip resurfacing on
18 March 2021, upon approval of the workers compensation insurer. The current symptoms were said to not be a natural progression of the underlying osteoarthritis.
Professor Kohan said that there was a specific event following which the pain and quantity changed. Professor Kohan said that this was clearly not a random event. While the original symptoms started to develop in 2007, up until this most recent incident, the symptoms were under control in spite of his normal activities. Simple paracetamol was all that was required. Professor Kohan said that he could not determine the reason why this specific event led to this aggravation.
Scans and investigations are as follows;
·        CT of the left hip 4 February 2015 – following two year history of left hip pain;
·        the study demonstrates moderate degenerative change of the left hip;
·        Ultrasound of left hip 11 February 2015 – unremarkable;
·        X-ray of the pelvis 25 November 2020, and
·        there is moderately severe osteoarthritis in the left hip. The joint space shows narrowing superiorly associated with subarticular sclerosis. There is marginal osteophytic lipping particularly on the inferior articular surface of the femoral head and a mild cam abnormality is noted on the superior aspect of the femoral head. The right hip appears normal. The pelvic girdle is normal.
Report of Dr Poplawski dated 1 July 2022. Regarding the accident in 2003 and subsequent events, it was recorded;
“Mr Gilbert was thrown off the motorcycle onto the road landing on his left side and sustaining abrasions to the left thigh and to both arms, legs and hands.
Once the abrasions had healed, he had no symptoms but over the next few years did note some recurrent mild discomfort occurring in the region of his left hip on occasions.
On 10 December 2007 he was lifting a heavy box out of the back of his police station wagon and felt a sharp pain in his left groin and hip area. From then on, he has continued to suffer from recurrent pain in his left groin, left hip and left leg aggravated by activities at work such as riding his motorcycle, when his legs would be in abduction, propping the bike up with his left leg when stationary, changing gears with his left foot etc.
He sought treatment at Waratah Medical Services at Morisset and was thought to have developed a left inguinal hernia.
His symptoms continued to progressively increase, particularly with work activities, as outlined above and eventually had a CT scan examination of the left hip carried out in February 2015 which reported the presence of moderate degenerative changes there.
Ultrasound examination of the left hip area in February 2015 reported the presence of a small direct inguinal fat hernia.
Mr Gilbert’s symptoms continued to progressively increase in severity.
On 23 November 2020, he was opening the door of a police vehicle carrying a HWP kit bag and, as he turned quickly to one side while so doing, developed a sharp pain in the left hip which caused him to almost fall to the ground below, with the area becoming progressively more painful thereafter.
His pain became more continuous and more readily aggravated by work activities, particularly when sitting in his patrol car, standing, walking, ascending and descending stairs and slopes and climbing up and down ladders. His symptoms caused him to spend less and less time riding his motorcycle, as the abduction position of his legs while sitting on the bike aggravated his symptoms significantly, resulting in increasing difficulty, and ultimately inability, to engage in patrol-bike duties.
In November 2020 he underwent bilateral hip X-rays which revealed the presence of arthritic changes on the left with the right hip being well preserved. These also showed features of femoroacetabular impingement, of the pincer type configuration to be present on both sides.
He was then referred to Professor Lawrence Kohan, Orthopaedic Surgeon and had an MRI scan examination of the left hip carried out which confirmed the presence of the above-mentioned changes.
Professor Kohan recommended resurfacing surgery for Mr Gilbert’s left hip, which was duly carried out by him on 13 May 2021”
Dr Poplawski concluded that in his opinion the motor vehicle accident incident of 2003 was the main contributing factor to the subsequent need for left hip surgery, in that it initiated early degenerative changes in the joint, subsequently aggravated over the years and ultimately requiring surgery in the form of resurfacing. Dr Poplawski said that were it not for this injury, it is more likely than not that progressive degenerative arthritis in his left hip, and the consequent increasing symptoms to the point where he required surgery, would be delayed by 10 years or more, if required at all. Also, if his increasing symptoms did require surgery, this would, by then, likely require total hip replacement surgery rather than a resurfacing procedure.
Dr Poplawski said that the claimant had the same condition, that is, pincer’s type femoroacetabular impingement, with only minimal degenerative changes, with no significant symptoms present Dr Poplawski was unclear but it appears that this is a reference to his right hip. He said that it was more likely than not that the accident in 2003 resulted in a compression injury to the hip joint which initiated the progression of degenerative changes by virtue of damage to the articular surfaces. He said that in his opinion, employment was the main precipitating factor.
Dr Poplawski assessed 17% WPI.
On 5 April 2024, the insurer’s solicitors served two medical reports on the claimant’s solicitors. One report was from Dr Mitchell dated 6 June 2023 and the other report was from A/Prof Horsley dated 21 July 2023. The insurer made it clear in its letter of 5 April 2024 that it was not relying on either report with respect to the causation findings of each expert.
In their letter to the claimant’s solicitors, the insurer’s solicitors said that both doctors had fallen into error as they had applied an incorrect test of causation. The insurer’s solicitors said that the doctors were inherently limited to apply a medical test of causation and not a legal test.
The insurer’s solicitors went further and said that neither doctor properly addressed whether there was a causal nexus between the subject accident and a left hip injury or the need for hip surgery. It was submitted that there was no consideration of whether, on the balance of probabilities, the subject accident was the root cause of an injury or the need for surgery. It was said that both opinions, in the submission of the insurer’s solicitors, gave a rudimentary assessment of causation without placing the appropriate weight on the absence of any mechanical defect or injury to the left hip which would have led to any acceleration of osteoarthritis.
The claimant’s solicitors have sought to rely on these additional two medical reports and filed an application to admit late documents on 5 April 2024. In the claimant’s application, they stated that consent had been sought from the insurer for inclusion of these documents as part of the claimant’s application. The Panel does not have before it any indication of consent from the insurer however, the Panel has considered these additional reports noting that they would in the possession of the insurer for some time and were only served on 5 April 2024.
Dr Mitchell, occupational physician, concluded that although there was a long period of time between the motor vehicle accident occurring on 26 February 2003 and the onset of left hip joint symptoms, in the absence of any other injury event and with no significant arthritic change in the uninjured hip joint, it would be more than likely that the incident in 2003 would have been a substantial initiating cause in the subsequent development of degenerative changes, requiring surgical intervention.
Associate Professor Horsley noted that the claimant said that it was around 2007 that he initially developed some pain in his left groin. It was then recorded that in 2020, the claimant developed increasing groin pain which was made worse by standing and walking. The doctor concluded that it was likely that the subject accident accelerated osteoarthritis of the left hip requiring a total hip replacement at an earlier age than would otherwise have been required.
The claimant was also noted as having symptoms of psoas tendinitis and A/Prof Horsley concluded that these symptoms were related to the total hip replacement which was required as a result of the accident.

PANEL MEDICAL EXAMINATION

The claimant was examined on behalf of the Panel by Medical Assessors Chan and Couch. Their report follows and forms the majority opinion of the Panel:
“Examination of Mr Johnathan Gilbert – on 12 Sept 23
Mr Gibert attended the assessment by himself on the 12.9.2023 at the medical suites of the Personal Injury Commission. He was assessed by Medical Assesor Couch and Medical Assessor Chan.
History of the accident and treatment
Mr Gilbert stated that if a policeman is injured at work, the policeman would report the injury under the Workers Compensation law. He was not aware that he could lodge a claim under the Motor Accident law. He said he became aware of this when his lawyer told him about this recently.
He was 32 years of age when the accident happened in 2003. It was 11.00pm and he was riding his Honda ST1100 motorcycle. The weather was warm, he wore a helmet, his police shirt (not wearing a leather jacket), a pair of gloves which had short fitting fingers. He wore a pair of trousers and pair of leather shoes with a leather guard that extended from ther ankle to just below the knee. The buckle of the leather strap that held the leather guard was on the lateral side of the leg guard. He had his headlight on high beam. The headlight of the car at fault, travelling in the opposite direction, was on high beam as well. The car appeared to slow down. He thought the driver of the car at fault had seen him. He continued to move forward. Suddenly, the car at fault made a right hand turn into his path of travel. He quickly turned his motobicycle to the left to avoid a collision. The front grille of the car hit the front of his motorcycle. He fell and landed on the left side of his body – the buckle on the leg guard came off, he sustained abrasion to the lateral aspect pf his left hip, the lateral and proximal part of the left thigh, the left arm and laceration to the ulnar aspect of his left wrist. He said a police officer was travelling in a car behind him, saw the accident, thought he would be dead, and was surprised when he saw Mr Gilbert got up from the fall.
Mr Gilbert said he was taken by ambulance to John Hunter Hospital where the trauma team attended to him. He had abrasions in his upper limbs, laceration to the ulnar aspect of his left wrist, and severe abrasions on the left proximal and lateral aspect of his left thigh which took some time to heal. He was discharged home from the hospital after the review.
He said he was off work for the next six weeks after the accident. He returned to motor cycle duty upon his return to work. He said the pain in the left hip/groin developed over the years.Mr Gilbert said he used to play golf and ride mountain bikes.
In 2007, he had an incident at work. He was lifting boxes out of the police station wagon, twisting to one side, he felt some pain in the left hip. Since then, he had left hip pain when propping up his stationary motorcycle with his left leg.
In 2009, although the pain in the left hip was troubling him, he had some pressing private family matter he had to attend to. The pain in left hip was not a priority for him to address.
In 2015, he had pain in his left groin and found on investigation that he had an inguinal hernia. He saw the doctor for the police force. The doctor told him the pain was from the osteoarthritis in his left hip and not due to the inguinal hernia.
The pain in the left hip became more noticeable and was affecting his function. He was referred by his GP to see Dr Rishi Narasimhan, an orthopaedic surgeon, about his left hip. Dr Narasimhan told him that he was young to have the degree of OA in his left hip and recommednded him to have total hip replacement (THR).
He had done some research about THR and was less keen on THR. He sought Dr Narasimhan’s opinion about hip re-surfacing. As Dr Narasimhan does not perform hip resurfacing surgery, he consulted Prof Kohan about this.
He had resurfacing of his left hip on 13 May 2021 by Prof Kohan.
Current symptoms
Mr Gilbert lives on a farm and is able to walk on the uneven ground. For some months after his left hip surgery, he has pain in the anterior aspect of his left hip on hip flexion. He had seen Prof Kohan about this . Prof Kohan said he had tendonitis in the anterior aspect of his left hip. This affected tasks such as squatting and climbing a ladder. He would get onto his tractor by first flexing his uninjured right hip and knee to step onto the tractor, followed by his left leg.
He had difficulty putting on his socks and shoes onto his left foot, with pain occurring when he flexes his left hip to put on the socks.
Examination
Mr Gilbert walks normally but has pain on full active flexion of left hip. He does not use any walking aid. He was co-operative and straight forward throughout the assessment. Mr Gilbert is right hand dominant.
On inspection, the iliac crests on both sides were equidistance from the floor indicating no limb length shortening. A vertical scar 25 cm long, 2 to 3 mm in width was noted in the posterior aspect of his left gluteal and proximal part of his left thigh. Mr Gilbert is not conscious of the scar which had a few suture marks and slight pigmentation. It is easily located by Mr Gilbert. It is not visible with normal clothing. There was no trophic changes and no adherence to underlying structures and no treatment was required.
The girth of the right thigh measured at 15 cm proximal to the upper pole of the patella was 52 cm in the right and left thigh. The girth of the calf measured at equal distance from the lower pole of the patella was 38 cm in both right and left leg. Hence, there was no muscle wasting in the left lower limb when compared to the right lower limb.
Causation
The Panel had considered the following evidence.
Mr Gilbert’s motorcycle was travelling at a reported speed of 90 kph just before the collision on the 26 February 2003.
After the impact of the collision, Mr Gilbert had landed on the left hip, left elbow with abrasions to the lateral part of his left gluteal and proximal thigh. Mr Gilbert said that the abrasion was bad and took some time to heal and he was not able to work for six weeks after the accident.
The abrasions sustained at the accident on the 26.2.03 were confirmed by the Ambulance Service and John Hunter Hospital’s clinical record.
Mr Gilbert did not receive any direct injury to the left hip after the subject accident in 2003.
Mr Gilbert had developed pain in the left hip over a number of years which affected riding the police motorcycle. He now only drives police cars.
He recalled on 10 October 2007, he felt a sharp pain in his left hip and groin ‘after lifting a heavy box out of the back of his police station wagon’. ‘from then on he had recurrent pain in his left groin, left hip when riding his motorcycle, his legs was in abduction, propping the bike up with his left leg when stationary, changing gears with his left foot etc.’ [Doc U -Dr Z Poplawski’s report]
In early 2015 he had a CT scan of the pelvis and hip. The CT Scan report stated that there was ‘Moderate osteophyte formation seen at the margins of the left femoral head and acetabulum. Narrowing of the superior joint space” and “moderate degenerative change of the left hip.’[Doc M,p136].
On the 25 November 2020, at 50 years of age, the x-ray pelvis reported ‘there is moderately severe osteoarthritis in the left hip. The joint space shows narrowing superiorly associated with subarticular sclerosis. There is marginal osteophytic lipping particularly on the inferior articular surface of the femoral head and a mild cam abnormality on the superior aspect of the femoral head’. ‘The right hip appears normal’. [Doc O, p138]. The Medical Assessors comment that this marked asymmetry with an essentially normal right hip, strongly favours a unilateral factor, such as trauma, having affected the left hip.
The Panel considered the accident in 2003 whence he fell off the motorcycle after being hit by the oncoming vehicle. He sustained a direct injury to his left hip and extensive abrasions to a large area of his left thigh at the accident. Landing heavily onto his left hip following a “high side” fall and evidenced by severe abrasions which kept a healthy 32 year old off work for 6 weeks, could certainly cause a compression injury to the hip joint. The Medical Assessors consider that pain from severe abrasions and probable associated contusion, would probably have masked any earlier deeper pain from the hip joint proper. The whole left hip joint area would have been stiff and sore and with pain on movement. He sustained a direct injury to his left hip and extensive abrasion to a large area of his left thigh at the accident. There was no injury to the right hip in this accident.
After the subject accident and over the years, he had complaints in his left hip, but none in his right hip. The left hip had advanced osteoarthritis whilst the right hip appeared relatively normal. If the trauma to his left hip had not occurred in 2003, he may not have the advanced osteoarthritis in his left hip. The Medical Assessors opine that the accident in 2003 is a contributing cause which is more than negligible to the development of advanced osteoarthritis of his left hip. Hence, the advanced osteoarthritis of the left hip is causally related to the 2003 accident.
Assessment of Permanent Impairment
In hip resurfacing surgery, minimal amount of bone is removed from the head and neck of the femur. A metal cap covered the head of the femur. On the acetabular side of the hip joint, a metal cup was placed inside the acetabulum resulting in a metal to metal hip joint. Compared to total hip replacement, hip resurfacing surgery which preserves the head and neck bone of the femur had been accepted as a less destructive alternative to treat arthritis of the hip joint.
AMA 4 Guide was written before the hip re-surfacing surgery was prevalent. However, the description in Table 4, page 85, states: ‘Total hip replacement; includes endoprosthesis, unipolar or bipolar’. This in fact accurately describes Mr Gilbert’s surgery, where both the lining of the acetabulum and the cartilaginous surface of the femoral head have been replaced by a metal endoprosthesis
With this procedure, both joint surfaces are completely replaced by metal prostheses, as in conventional THR. The main difference from conventional THR is that part of the head, and the whole neck of the femur, are preserved. This may leave more scope for possible future revision surgery in a young patient.
It clearly follows that Table 64, page 85, in conjunction with Table 65, page 87 of AMA 4 should be used for assessing Mr Gilbert’s left hip. Referencing Table 65, the Panel assessed his hip replacement as 82 points, which gave him 20% WPI from Table 64.
The Medical Assessors have considered the other methods of assessing the impairment of the lower limb as listed in the Motor Accident Guidelines: Permanent Impairment , Dec 2020,(MAGPI) and the other methods were not appropriate.
Based on the assessment findings of the scar in the posterior aspect of his left hip and using the principle of best fit and TEMSKI, the assessment of the surgery scar on his left hip would merit 0% WPI.

Body Part or System

AMA4 Guides/ Guidelines References

(chapter/ page/table)

Permanent (YES/NO)

Current

%WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to motor accident

Left hip

AMA4, Tables 64, 65

YES

Scarring

TEMSKI scale

YES

CONCLUSION AND MAJORITY DECISION

The Medical Assessors, forming the majority of the Panel, find that the accident occurring on 26 February 2003 did cause left hip post-traumatic osteoarthritis of the claimant.
Consequent upon this, the claimant required surgery by way of left hip resurfacing. This has given WPI of 20%.
The Medical Assessors therefore revoke the certificate and reasons of Medical Assessor Hyde Page.

MINORITY OPINION OF MEMBER BOLTON

The following are separate reasons as it is a minority opinion.

CAUSATION
The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).
The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment station the non-medical edge is by reference, test of causation. Concerning that issue, the Panel must determine causation by the application of legal notion of causation.

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a Review Panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
The Guidelines in cls 6.6 and 6.7 are an incomplete statement of some of the legal principles needing to be applied in respect of causation. The legal principles in respect of causation must be applied, including section 5D of the Civil Liability Act 2002 (CLA). This requires a detailed analysis about whether the circumstances of the accident and the nature of the injuries occurring when the claimant fell to the ground from his bike, arose as a consequence of the subject accident. The non-medical approach requires consideration in accordance with Varga v Galea [2011] NSWCA 76 at (9) that the accident was a necessary condition of the harm - see also Warth v Lafsky [2014] NSWCA 94.
At common law, causation is a question of fact, to be approached in a common sense manner, in which the "but for" test plays an important role: March v E & HM Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (at 5l5 - 546) per Mason CJ (Toohey and Gaudron JJ agreeing).
Section 5E of the CLA provides that in determining liability for negligence, the defendant always bears the onus of proving, on the balance of probabilities, any fact relevant to causation.
Campbell J in Owen v Motor Accidents Authority (NSW),[4] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that 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 Civil Liability Act 2002, s 5D. (See s 3B(2)) of the CLA."[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
The two-step process in s 5D of the CLA takes into account the previous position at common law. In Wallace v Kam [2013] HCA 19 it was held that a determination about causation involves two questions. The first question is a question of historical fact as to how a particular harm occurred and the second question is a normative question about whether legal responsibility for that particular harm occurring in that way should be to be attributed to a particular person. The Court held that the determination under s 5D(1)(a) involved nothing more or less than the application of a “but for” test. The Court noted at (16);
“that is to say, a determination in accordance with section 5D(1)(a) that negligence was a necessary condition of the occurrence of the harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absence the negligence.”
Following Justice Campbell and his comments in Owen, s 5D of the CLA must be considered when assessing causation.

195.Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability').”

There are two elements to address when assessing causation under s 5D(1):
"factual causation";[6] and
"scope of liability".[7]
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Making these assessments of "factual causation" and "scope of liability" involves making value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^{^[8]}
In Briggs v IAG Limited t/as NRMA Insurance[9] Harrison AsJ considered an application for judicial review of medical certificate issued by a Review Panel involving the application of
[9] [2020] NSWSC 1318.
s 1.6 of the Act. Section 1.6 of the Act refers to the definition of causation in the Glossary at page 314 of the AMA4 Guides. This is in relation to the assessment of permanent impairment as in the same terms as cls 6.6 and 6.7.
The Review Panel in Briggs was constituted by three Medical Assessors before the changes brought in by the Personal Injury Commission Act 2020 where a legal Member now constitutes one of the Panel.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues to be determined involved applying the definition of “minor injury” (now referred to as threshold injury”) and involved a question of causation in respect of an amputated toe.
The discussion in Kinchela concerning the correct principles to apply relating to causation are set out below:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW(2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen(2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a ‘left posterolateral annular tear’ with ‘mild disc desiccation’ shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
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.’
72 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].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cl 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cl 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
I have provided this lengthy analysis of case law and legislation going to causation because of the particular facts of this case. The Panel has had to deal with an accident occurring in 2003 and the assertion that as a result of the accident, the claimant developed osteoarthritis.
My consideration goes to whether the accident contributed to the claimant’s physical injuries as referred to the Panel by the Commission. Following on from this, it must be decided whether the accident materially contributed to those injuries and the need for treatment.
The claimant was a motorbike rider who was thrown from his bike onto the roadway when the insured car turned right, across his path. In the circumstances he would have been thrown from his bike onto the ground, rather than gently falling to the ground, in any impact of this nature.
The police report indicated the injuries as grazes only. The report says the rider, the claimant, fell heavily onto the bitumen surface. He suffered abrasions/grazes to left thigh, arms, legs and hands. Taken to hospital by ambulance.
The claimant says he was travelling at 90kmph when the other car turned slowly in front of him. He skidded and the bike front collided with front of car. The bike went down on the road, throwing him off.
On the ambulance report, the diagram notes abrasions to left hip and right buttock. The claimant informed the ambulance officer that he “rolled” onto the road.
As the accident occurred 21 years ago, an understanding of the nature of the claimant’s injuries is best gained from contemporaneous statements. The ambulance report is the most contemporaneous record of the claimant’s injuries. This reported that the claimant rolled onto the roadway causing abrasions to his left hip. The claimant was also reported as having abrasions to his left arm and his right hand. No other injuries were recorded. Of course, a lack of contemporaneous complaint does not mean that the injury did not occur.
The hospital notes provided no identification of a traumatic injury to the left hip. Abrasions only were recorded. Importantly, there was no history taken of an impact injury or compression injury to the left hip. Post-accident examination at the hospital provided a diagnosis of a soft tissue injury to the right hand with multiple abrasions to the same areas identified in the ambulance report as well as both knees. This, on my assessment, is significant. A heavy fall in the circumstances would be expected given the known facts of the accident. The Medical Assessors though, consider that a compression injury to the left hip could have occurred. Symptoms could have been disguised.

When the claimant provided a statement to police, over four months later on 18 June 2003, there was a description that he fell heavily on the road surface but nothing else to describe manner of the fall in the area of impact of the claimant’s body.
Following the accident on 26 February 2003, the claimant was certified fit to return to his pre-accident police duties on 11 March 2003 although he did not immediately return at that time.
The claimant has been involved in a number of events/incidents which might give rise to the development of osteoarthritis in his left hip. These incidents are;
(a)   the subject accident on 26 February 2003;
(b)   an incident on 10 December 2007when the claimant was lifting a box, vests and witches hats from the boot of a car;
(c)   there was identification and treatment of a left inguinal hernia with left groin pain, in January 2015. Whilst this does not go to the claimant’s injuries from the accident, there was an ultrasound taken at the time which identified moderate osteophyte formation at the margins of the femoral head and acetabulum, and
(d)   an injury on 23 November 2020 to the claimant’s hip while opening the door of a police car and while carrying a Highway Patrol kitbag.
The claimant had a CT scan of his pelvis and left hip in 2015. This showed moderate osteoarthritis in the left hip. It was also noted that the claimant had a two year history of left hip pain. It was at this time that the claimant was informed that he was developing some osteoarthritis and that the symptoms had come on gradually for no obvious reason. Mixed with this pain, the claimant also had pain from his hernia.
An X-ray of the left hip on 15 August 2017 showed degenerative changes in the hip joint but more so to the left.
An X-ray of the left hip on 25 November 2020 showed moderately severe osteoarthritis of the left hip joint. This also showed that he had, essentially, a normal right hip.
It cannot be determined precisely but it does appear from the records and information from the claimant that at the time of impact, the claimant’s motorbike and the insured car were not travelling at low speed. It would not be unreasonable to expect that the claimant would be thrown off his bike and fall heavily onto his left hip and side or, possibly, be thrown towards the road in more of a sliding action. There is little for the Panel to determine this and anything decided in this regard is to a degree, speculation. What is not clear though is whether there was a heavy impact to the claimant’s hip with a resulting compression injury with the force involved. Had this occurred, medical experience dictates that it was most likely that the claimant would have suffered significant injuries and could have been in immediate pain. Nothing about this was complained of by the claimant either to the attending ambulance officers or to the admitting doctors at John Hunter Hospital, following the accident. No complaint was ever made, it seems, until 2007, after another event had occurred.
The claimant attributes his current osteoarthritis to the incident in 2003. The insurer argues that the osteoarthritis could have occurred on two other occasions being the “boot” incident on 10 December 2007 or when the claimant was opening a door of a police car, carrying a kitbag, on 23 November 2020. It is apparent that attribution of any relationship of the claimant’s left hip osteoarthritis to a particular event is a matter of speculation, but it is the role of this Panel to make a determination. The motor bike accident in the opinion of Medical Assessors Couch and Chan was the only reported incident likely to damage the hip. Or, possibly this was a process of a degenerative condition.
Professor Kohan provided a report of 5 March 2021. This was to a workers compensation insurer involved in the claim arising on 23 November 2020. Professor Kohan said that the claimant started to develop symptoms of osteoarthritis in 2007 and up until the incident on
23 November 2020 the symptoms were under control, in spite of his normal activities. In a report of 22 January 2021, Professor Kohan wrote to the claimant’s GP and referred to the accident in 2003 saying the claimant suffered injury to his left lower limb and left hip. He said the injury experienced in 2003 was a compression injury impacting his femur into the acetabulum and yet the ambulance and hospital notes do not make any reference to an impact injury of this nature.
It would appear though, from the comments of Professor Kohan, that a progression of osteoarthritis between 2003 to 2007 was not seen by him as being the case. He wrote, to the workers compensation insurer on 5 March 2021, that symptoms did not start until 2007. This of course, was with respect to the claimant’s injury on 10 December 2007 lifting a box out of a boot.
Dr Poplawski, in his report of 1 July 2022, said that after the accident the claimant over the next few years did note some recurrent mild discomfort occurring in the region of his left hip, on occasions. There are no medical records confirming complaint of any discomfort in that time and this information is dependent on histories provided by the claimant, close to 20 years post-accident.
Dr Poplawski discussed the other incidents of 2007 and 2020 and said that during that time, the claimant’s symptoms continued to progressively increase in severity.
The claimant’s solicitors, when instructing Dr Poplawski for his report, referred to the claimant suffering a compression injury impacting his femur into the acetabulum. This however is not the description ever given by the claimant immediately at the time of the accident or shortly thereafter in hospital but is a description provided nearly 20 years later.
Dr Poplawski accepted what was said by Professor Kohan which was that in the accident on 26 February 2003, the claimant injured his left hip in the form of a compression force across the joint the femoroacetabular impingement. Dr Poplawski has taken no account of the subsequent injuries in 2007 and 2020 as to whether these might have contributed to symptoms of osteoarthritis.
The conclusion of Dr Poplawski appears to be based on an acceptance of a compression injury having first occurred and not to take into account the possibility if that compression injury had not in fact occurred.
There is no contemporaneous evidence that the claimant suffered a compression injury to his left hip in the accident of 2003. There are also no medical records/clinical notes recording any treatment about this, between 2003 and 2007.
The claimant submits that he had an insult to his left hip. It is correct that the left hip area was harmed in the accident but the only contemporaneous note about this relates to grazes and abrasions. Thereafter, there is no complaint of any left hip injury or treatment for years after that time.
The claimant informed the Medical Assessor that following the accident he worked uneventfully but said that he did develop some symptoms around his left hip and groin in 2007 and 2009. There is no notation in the Medical Assessor’s medical report if the symptoms in 2007 were pre-or post the accident occurring on 10 December 2007, noting that he described this incident as causing a sharp pain in his left groin with the pain persisting and ultimately a left inguinal hernia identified and treated.
Dr Narasimhan in his report of 13 January 2021 has only referred to a history of the claimant being involved in a motorbike accident in 2003 following which he noticed left hip pain that has gradually been getting worse with time. This is not an observation by the doctor but merely a reporting of a history provided by the claimant.
The Medical Assessor concluded that the claimant suffered a compression injury in 2003 to his left hip which was a major contributing factor to the gradual onset of osteoarthritis in his left hip, ultimately leading the claimant to needing a left hip resurfacing procedure which was performed in May 2021. This conclusion of the Medical Assessor, and the conclusions of Professor Kohan, Dr Poplawski and Dr Narasimhan, are all based on the assumption that the claimant suffered a compression injury to the left hip at the time of the accident. However, the contemporaneous records of the attending ambulance officers and the treating practitioners at John Hunter Hospital do not record any such compression injury. Such an injury would in the normal course of events be evidenced by mild to extreme pain and yet the claimant was never treated immediately after the accident for such mild or extreme pain.
The report of Professor Myers is not of great assistance. Professor Myers said the claimant’s osteoarthritis of his left hip was a degenerative condition and would not be caused by the accident in 2003. He did say that he saw no evidence that the osteoarthritic changes in the claimant’s left hip were related to his employment with the police force.
Professor Myers said that the claimant had osteoarthritis of the hip which he thought was the cause of his pain. Professor Myers said the claimant’s condition of osteoarthritis of the left hip was a degenerative condition and not caused by the incident in 2007. He did not really provide any basis or substantiation for his opinion.
I need to be satisfied that the accident aggravated the claimant’s underlying osteoarthritic condition. After the accident it was only reported that the claimant had grazes and there was no suggestion of a compression injury. The first indication of a compression injury was when it was referred to by Professor Kohan, 17 years after the accident, that the claimant had suffered a compression injury. If he did not suffer a compression injury then the conclusions of Professor Kohan, are based on an incorrect premise.
It is possible that the claimant could have suffered a compression injury but it is unlikely, on my assessment, given the time that has passed and also noting that complaints of pain were mixed with the claimant’s hernia condition.
It is also of note to me that if the claimant had suffered a compression injury then why were no scans or radiological investigations undertaken at the time of his admission to hospital, immediately after the accident?
A medical assessment of a patient, in this case the claimant, has never referred to any information of complaint of an osteoarthritic pain condition of this nature until several years after the accident. It was not until 17 years after the accident that a compression injury was considered and only following this information being provided by the claimant. This is not a contemporaneous account.
Considering the question of historical fact as to how the particular harm occurred, the claimant submits that the occurrence was the subject motorbike accident on
26 February 2003 when he was thrown from his motorbike.
The next question is whether legal responsibility for that particular harm occurring in that way should be attributed to the insured driver. There was no issue about the liability of the insured driver causing the accident but whether the injury suffered by the claimant and harm include the commencement of a degenerative condition of osteoarthritis of the left hip is arguable.
The Panel must consider whether on the balance of probabilities the accident in 2003 caused the commencement of the condition of osteoarthritis in the claimant’s left hip. To do this, consideration must be given to cls 6.6 and 6.7 of the AMA4 Guides.
Regarding cl 6.6, it could be regarded that the physical impact of the accident contributed to the occurrence of the claimant’s medical condition of osteoarthritis of his left hip. It is not fanciful to suggest that this alleged factor could have caused to worsening of the impairment. However, whether the factor of the accident did cause or contribute to worsening impairment is a non-medical determination because of the difficulty in determining when the osteoarthritis first developed. There is no consistent statement about this on the medical evidence submitted by the claimant is inconsistent.
The issue is further complicated by there being no evidence of a compression injury to the claimant’s left hip immediately after the accident. It is not actually until around 2020 that the claimant has suggested such a forceful, compression injury noting that he was only ever observed at the time of the accident to have grazes to his left hip and return to work approximately eight weeks after the accident.
Regarding cl 6.7, when considering whether the injury was caused or materially contributed to by the accident, there is no suggestion that the claimant sought treatment or made any complaint about an osteoarthritic condition of his left hip before 2007, when he suffered another accident to that area. That was on 10 December 2007 and then on
23 November 2020 he suffered further injury to his left hip.
The Panel must consider would this injury have occurred if not for the accident? The answer is possibly, and possibly not. The occurrence of osteoarthritis is a gradual process and can lead to symptoms later in life. Whilst the Panel cannot make its decision solely on the basis of no complaint having been made about his left hip for three years after the accident, this is a factor that I consider is important. The claimant made no adverse complaint of pain to his left hip until he had an accident in 2007. Up until that time he had not sought any treatment or guidance consequent of any osteoarthritis that may have been developing. The development of osteoarthritis from 2007 would seem a logical occurrence and particularly noting the comments of Professor Kohan who attributed the claimant’s problems to the 2007 incident and only later changed his opinion based on a history provided by the claimant, 17 years after the 2003 accident and contrary to the contemporaneous complaints at the time of the accident and shortly afterwards in hospital.
The claimant had no evidence of a compression injury, which might be expected to give some pain or extreme pain, on the event of the accident in 2003. Such an injury could be attributed to the commencement and progression of osteoarthritis but there is no record of a compression injury having occurred.
I have to consider whether, on the balance of probabilities, the accident in 2003 caused an osteoarthritic condition. There is though, also the possibility that this condition could have occurred in 2007 or 2020. So there are two other alternatives out of three. One event in 2003, out of three events in total, does not equate to something substantially being on the balance of probabilities.
I am not satisfied that the accident in 2003, caused a compression injury to the left hip and not ever having been complained of in that regard, would have developed subsequently into an osteoarthritic condition. It is not unrealistic to also consider whether either of the accidents or events in 2007 or 2015 or 2020 would have materially contributed to the claimant’s condition rather than the accident in 2003. It is a matter of speculation and uncertainty and for which, on the balance of probability, I am not satisfied that the accident in 2003 has caused an osteoarthritic condition to the claimant. The condition could have been caused by trauma, or by a matter of a degenerative condition.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Hyde Page dated 16 February 2022.
The Panel by majority finds the following injuries:
(a) left hip- post traumatic osteoarthritis, and
(b) skin scarring-left hip,
give rise to a total WPI assessment of 20%.

Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”

[2024] NSWPICMP 261

29 April 2024