Insurance Australia Limited t/as NRMA Insurance v Hussein

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Hussein [2023] NSWPICMP 133
CLAIMANT:	Fatme Hussein
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Cameron Thompson
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Dr Neil Berry
DATE OF DECISION:	6 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant suffered injuries in a motor accident on 19 June 2017 when she was a passenger in a vehicle which was stationary behind traffic and was struck from the rear by another vehicle; dispute as to whether surgery in the form of a left hip arthroscopy and a left hip repeat arthroscopy with lateral femoral cutaneous (LFC) nerve neurolysis is reasonable and necessary in the circumstances and relates to the injuries caused by the motor accident; Medical Assessor (MA) determined that both surgical procedures relate to the injuries caused by the motor accident and are reasonable and necessary in the circumstances; insurer sought review; discussion of what is required to establish that treatment is reasonable and necessary; Held – the treatment of the labral tear with arthroscopic surgery and repair was reasonable and necessary as it was causally related to the accident due to a seatbelt injury which also caused injury to the lateral cutaneous nerve of the left thigh resulting in meralgia paresthetica; the left hip arthroscopy and left hip repeat arthroscopy with LFC nerve neurolysis relate to the injuries caused by the accident and are reasonable and necessary in the circumstances; certificate of MA confirmed.
DETERMINATIONS MADE:	Medical Assessment – Treatment (Physical) Review Panel Assessment of Treatment (Physical) Replacement Certificate issued under section Part 3.4 of the Motor Accidents Compensation Act 1999 1. The Review Panel confirms the Certificate of Assessor Herald dated 17 March 2022.

REASONS

BACKGROUND

The Claimant, Fatme Hussein, suffered injuries in a motor accident on 19 June 2017 when she was passenger in a vehicle which was stationary behind traffic on Parramatta Road in Sydney, New South Wales, when it was struck from the rear by another vehicle (the accident).
The Claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
NRMA Insurance (the Insurer), is liable for the driver of the vehicle which struck the Claimant’s vehicle for liability to pay the Claimant any damages under the MAC Act.
The present dispute before the Panel is whether surgery in the form of a left hip arthroscopy and a left hip repeat arthroscopy with LFC nerve neurolysis performed by Dr Walker is “reasonable and necessary in the circumstances” and “relates to the injuries caused by the motor accident”. These constitute medical disputes within the meaning of the MAC Act[1].
[1] See ss.57-58 of the MAC Act.
The medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s.63 of the MAC Act on review by a review panel.
[2] Section 60 of the MAC Act
The medical disputes were referred to Medical Assessor Herald (Assessor Herald) who issued a Certificated dated 17 March 2022 in which he determined that the left hip arthroscopy and left hip repeat arthroscopy with LFC nerve neurolysis:
a)relate to the injuries caused by the motor accident; and
b)are reasonable and necessary in the circumstances[3].
[3] IBP pp.6 and 7

THE REVIEW

The application for referral of the medical assessments to a review panel were made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 17 March 2022, the President’s Delegate referred the medical assessment of Assessor Herald to the Review Panel (the Panel) as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]

[9] Section 63(3A) of the MAC Act.

THE ASSESSMENT UNDER REVIEW

The following treatment disputes were referred to Assessor Herald for assessment:
a)Left hip arthroscopy;
b)Left hip repeat arthroscopy with LFC nerve neurolysis.
Assessor Herald examined the Claimant on 25 November 2021 and obtained from her a history that she was involved in a total of five motor vehicle accidents, there being three motor vehicle accidents prior to the subject motor accident on 19 June 2017.
The Assessor refers to an initial motor accident in around 2003 or 2004 in relation to which he says there is limited history available and that the Claimant underwent an arthroscopy of the Claimant’s injured left knee and which is described as fully recovered.
The Assessor records that the Claimant was involved in a second motor vehicle accident on 28 August 2017 which was a rear end collision in which she sustained an injury to her neck with an aggravation of her left knee injury as well as psychological injuries. He notes the opinion of the Claimant that she feels she did recover from these injuries and that an IME assessment by Dr Deveridge on 9 November 2009 resulted in a determination of 0% whole person impairment of her neck and back and another IME assessment by Dr Ellis on 19 November 2008 and that Medical Assessor Prior determined that her psychological injuries, including major depressive disorder and post-traumatic stress disorder, were deemed to have been greater than 10% in a certificate dated 13 September 2010, and that Medical Assessor Cameron certified on 27 July 2010 that the injuries to her neck and back had a whole person impairment of less than 10%.
The Claimant was involved in a further accident on 6 March 2004 when the Claimant was stationary in a vehicle which was struck by a speeding car and her left knee hit the dashboard. An MRI scan performed on 27 March 2004 identified a grade 2 chondral defect of the posterior medial femoral condyle and she was complaining of left hip pain for which she underwent an x-ray of her left hip on 14 March 2014 and a CT scan of the lumbosacral spine on the left hip on 10 July 2014. Assessor Herald notes that the Claimant’s GP, Dr Sharma, had described her as having ongoing lower back and left hip pain following that accident. A groin ultrasound was performed on 25 July 2014 to determine the cause of her groin pain and she continued to suffer left groin and lower abdominal pain through the subsequent years undergoing further radiological investigation for this.
In 2015 she underwent an appendectomy and in 2018 a laparoscopic cholecystectomy as part of the management of her ongoing abdominal pain.
The Claimant had a subsequent motor accident on 14 February 2018 which she describes as a minor accident causing right sided neck and right sided shoulder pain after being rear ended by another car whilst her own car was stationary at traffic lights causing her to be thrown forward and pulled backwards. On the day of that accident she went to Concord Hospital emergency department where CT scans were performed which showed no fracture. She had neck pain with intermittent paraesthesia in her fingers for which she was referred to see Dr Damodaran. Assessor Herald notes that the left hip pain and left groin pain which was present during the motor accident on 6 March 204 is described by the Claimant as having resolved by the time of the subject motor accident on 19 June 2017. He also notes that in May 2018, the Claimant had a gastric sleeve surgery for morbid obesity, which resulted in her reducing her weight from 125kgs to roughly 50kgs and that the Claimant was taking medication for depression.
Assessor Herald took a history of the subject accident on 19 June 2017. The Claimant was a front seat passenger of a motor vehicle which was being driven by her husband and was stationary at a set of traffic lights on Parramatta Road at Stanmore when it was hit from behind by a ute. She says she was thrown forward and her glasses came off her head and she lost her phone which she was holding. The rear end of her car was lifted up. She said that she had pain in her neck, headaches and blurred vision and that her knee hit the dashboard and describes discomfort in her knee and her left hip as well as her back with radiation down her whole left leg. The next day she went to see her GP, Dr Sharma, and was given medications and referred to Concord Hospital. She had imaging to exclude any fractures and was referred back to her GP. She had a series of medications including analgesia such as Endone, Paracetamol, anti-inflammatory tablets and underwent physiotherapy. She has had an aggravation of her lumbar lower back pain, neck pain and pain and numbness radiating down her whole left limb and neurological symptoms with numbness radiating down her left upper limb. Her back pain was described as radiating to her hip and her neck pain as radiating to her shoulder. She was referred to see a neurosurgeon, Dr Damodaran who described her as having left sided L5-S1 radiculopathy and she commenced taking Lyrica and was given L5 epidural steroid injections. The back pain however persisted down her leg.
Assessor Herald records a history of symptoms and treatment following the accident including bariatric surgery on 20 May 2018 after which she lost about 50kgs in weight. As a result of this and multiple cortisone injections her back pain showed some improvement but her hip and groin pain persisted and she was referred to the orthopaedic surgeon, Dr Walker, in around January 2019. An MRI scan showed a labral tear. She underwent a number of cortisone injections to the left hip joint and was referred to the orthopaedic surgeon, Dr Garvey, in regard to the possibility of a groin problem but ultimately was referred back to Dr Walker and a left hip arthroscopy was performed on 4 April 2019. This gave her little relief and she was eventually referred to the pain specialist, Dr Hou, who tried a number of medications and performed two nerve blocks. On 27 May 2020, the Claimant underwent a left sacroiliac joint neurotomy and a block of the greater trochanter and PRP. This and a trial of a number of different medications made no real difference and that she went back to Dr Walker who performed a second left hip arthroscopy on 25 August 2020 to shave some bone and either a release or division of the left femoral cutaneous nerve.
Assessor Herald notes that the Claimant’s current symptoms include ongoing stiffness of her neck and her back and pain in her left hip and predominantly her left shoulder. She has continued to have physiotherapy and multiple medications including Endone and Targin as well as Panadol and Voltaren. She is also having Lexapro and Somac and seeing a psychologist as well as a physiotherapist.
Assessor Herald conducted a clinical examination of the cervical spine, lumbar spine and lower extremity including the scar over the anterior aspect of the left hip.
Assessor Herald reviewed the documentation provided to him including additional medical reports from Dr Harrington dated 15 June 2021 and 18 August 2021, a report from Dr Muratore dated 19 August 2021 and an AHC investigations report with attached surveillance dated 6 July 2021.
Assessor Herald viewed the surveillance and notes that it shows that on 11 June 2021 the Claimant is exiting from the passenger side of the vehicle where she drops one of her Canadian crutches and has difficulty bending over to pick it up and that she also has difficulty walking but does use the Canadian crutches to help support herself and puts most of her weight on her right hip. He notes the opinion of Dr Muratore in relation to the surveillance that the Claimant demonstrates activities such as full flexion of the lumbar spine and was able to weight bear whilst using her telephone in her right hand which Dr Muratore says she was not able to do a few months earlier when he reviewed her.
In the opinion of Assessor Herald, the imaging that he saw is consistent with someone who has a right hip labral tear and secondary arthritis in that she has difficulty walking without assistance of the Canadian crutches and prolonged weight bearing causing pain. She is not unable to walk but simply requires the Canadian crutches as a form of pain relief to reduce the pressure on her left hip. Her behaviour at the time of the surveillance footage is consistent with the pathology identified.
In the opinion of Assessor Herald the subject motor accident can be considered to have caused the left hip injury. He notes that the MRI scans identified a labral tear indicating that an injury to the hip has happened and is unable to relate this to any previous motor accident as there was no hip injury after the motor vehicle accident in 2014 to confirm the tear. Consequently, Assessor Herald concludes that one would have to assume that the subject motor accident caused the hip tear as it is after this that she has complained of hip pain and left leg pain. In his opinion, even if the labral tear did occur at some earlier stage in the Claimant’s life, it is difficult to prove the motor accident did not inflict the cause of at least a material aggravation with that tear.
On the basis of the above, Assessor Herald concludes that the left hip arthroscopy dated 4 April 2019 and the repeat arthroscopy dated 25 August 2020 as well as the lateral femoral cutaneous nerve neurolysis relate to the subject motor accident on 18 June 2017.

ASSESSOR PRESTON’S DETERMINATION OF THE PERMANENT IMPAIRMENT DISPUTE

Medical Assessor Preston (Assessor Preston) conducted a further assessment of the permanent impairment dispute in relation to the Claimant’s physical injuries in February 2022[10].
[10] CB p.39
The following injuries were referred to Assessor Preston for assessment:
a)scarring;
b)injury to the left shoulder;
c)injury to the left hip;
d)injury to the left knee;
e)injury to the lumbar spine;
f)injury to the cervical spine.
Assessor Preston found that the following injuries were caused by the accident:
a)left shoulder;
b)left knee (resolved);
c)lumbar spine;
d)cervical spine.
Assessor Preston further found that the following injuries were not caused by the accident:
a)Left hip/scarring.
Assessor Preston determined that:
a)The Claimant has a DRE1 cervicothoracic impairment in that she has no significant clinical findings, no guarding or spasm and no documentable neurological impairment and no significant loss of integrity on imaging. She does not have dysmetria, objective evidence of radiculopathy or symptoms consistent with non-verifiable radicular complaints. She assessed the whole person impairment of the cervicothoracic spine at 0% with no pre-existing or subsequent causes;
b)The Claimant has a 0% permanent impairment of the left shoulder as she has an entirely normal range of movement in that joint, with no pre-existing or subsequent causes; and
c)The Claimant has a DRE2 lumbosacral impairment. She does not have guarding or spasms or dysmetria and she has no objective signs of radiculopathy or loss of structural integrity. She does however have constant sensory disturbance in the toes of the left foot which is considered to be consistent with non-verifiable radicular complaints.
The Claimant lodged an application for review of the assessment of Assessor Preston on the basis that that the assessment was incorrect in a material respect. On 21 April 2022, the President’s Delegate accepted that application and referred the matter to a Review Panel.
The Review Panel which was constituted to determine the review of the Certificate of Assessor Preston is the same panel which was allocated the determination of the review of Assessor Herald’s Certificate – Member Thompson and Medical Assessor’s Dixon and Berry.

STATUTORY PROVISIONS / GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation, particularly ss 5D and 5E of the CL Act apply to the MAC Act[11]. In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the CL Act.
[12] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act. The observations are still pertinent to the presently constituted Panel.

MATERIAL BEFORE THE PANEL

The Panel issued a direction dated 15 July 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in this Review.

In response to these directions, the Insurer uploaded to the portal at AD1 a bundle of documents paginated from pages 1 to 641 (IB). The Claimant uploaded to the portal at AD2 a bundle of documents paginated from pages 1 to 791 (CB).
IB includes the following additional documents which the Insurer was granted leave to rely upon pursuant to a determination of the Insurer’s Application to Admit Late Documents by the President’s Delegate on 7 December 2022[13]:
a)Reports of Dr Chris Harrington dated 15 June 2021 and 18 August 2021[14];
b)Report of Dr Muratore dated 19 August 2021[15];
c)Investigation report from AHC Investigations dated 6 July 2021 including surveillance footage[16].
[13]        CB p.36
[14]        IB p.758
[15]        IB p.770
[16]        IB p.772 and AD3
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 43 to 45 above in making its findings and determinations.

SUBMISSIONS

Insurer’s Submission in relation to the application for review of Assessor Herald dated 11 April 2022[17]

[17] IB p.1

These submissions were relied upon by the Insurer on the application for review of the assessment of Assessor Herald.
The Insurer submits that there is more than a reasonable cause for suspicion that Assessor Herald’s assessment was vitiated by the following material errors:
a)failing to apply the test as to causation correctly;
b)failing to consider relevant material when applying the test as to causation.
The Insurer does not submit that Assessor Herald was in error to have regard to the two-step ‘test’ in clause 1.6 of the Motor Accident Permanent Impairment Guidelines (the Guidelines) but that Assessor Herald has clearly fallen into error when he attempted to apply the two-step method.
The Insurer submits that Assessor Herald’s findings firstly say nothing as to whether the subject accident could have caused the injury [to the left hip] in the first part of the test. It is submitted that in applying the test that causation assessed, Assessor Herald was required to determine that the accident did in fact cause the subject injury, not merely that he could not relate it to anything else or that it would be difficult to prove that the accident did not inflict the injury.
It is also submitted that Assessor Herald’s findings as to causation also demonstrate that he has erred in failing to consider relevant material, that Assessor Herald failed to consider the Insurer’s submission as to various medical records and reports which addressed the fact that no complaints of hip pain were made until 12 January 2019, some 19 months after the accident. In this regard, the Insurer highlights the clinical records of Dr Sharma and the Victoria Tower Medical Centre, the report of Dr Patrick in relation to his examination of the Claimant in April 2018, the Certificate of Medical Assessor Long dated 22 January 2019 and the report of the biomechanical engineer Michael Griffiths[18].
[18] Para.24
Whilst the Insurer acknowledges that it is not incumbent upon the Assessor to address each and every piece of evidence placed before him, it is submitted that it is necessary, where there is a substantial body of evidence and submissions have been made that disclose or assert facts that are contrary to those that the Assessor has relied upon, that the Assessor at the very least provide reasons sufficiently to justify or explain his acceptance of different facts and that this is particularly so when the Assessor’s findings as to causation were entirely contingent upon the relevant facts.
It is further submitted that Assessor Herald’s reasons are essentially that the Claimant complained of left hip symptoms since the accident and therefore the accident was the cause of the left hip injury and that there is nothing in the Assessor’s reasons that could be considered to provide a sufficient pathway of reasoning to understand how he came to determine causation based on the facts that were contrary to a substantial body of evidence that was before him, and that this clearly demonstrates that the Assessor did not consider the relevant material[19].
[19] Para.27

Insurer’s MAS Submissions dated 29 October 2020[20]

[20] IB p.561

These submissions were relied upon by the Insurer in relation to the assessment of the treatment dispute in relation to a left repeat arthroscopy which the Claimant was to undergo on 25 August 2020 at the recommendation of Dr Walker.
The Insurer notes that it has denied liability for any treatment in relation to the Claimant’s hip.
It relies upon the report of the biomechanical engineer, Michael Griffiths, dated 15 September 2020[21].
[21] IB p.24
In summary, Mr Griffiths concluded on the basis of his analysis that the Claimant could not have received the alleged injuries to her neck, left shoulder, lower back and hip/groin/pelvis/abdomen region in the accident because:
a)the allegation that she was thrown forward in this accident is contrary to fundamental laws of physics;
b)the forces in this incident for the occupants of the Claimant’s vehicle would have been rearward not forward so that there was no potential for the Claimant’s knee to move forward and have injurious impact with the vehicle’s dashboard, and that in any event, if this had been a moderate frontal impact, the combination of the restraint of the engagement of the buttocks with the seat base and the lap component of the seatbelt would have limited such forward movement to the extent that injurious contact with the dashboard would not have been possible;
c)there was a lack of contemporaneous complaint linking the alleged hip pathology to the accident; and
d)the Claimant’s morbid obesity means that when standing and walking she was imposing impact loading on her hip and knee joints in the order of double of what they would have been if she had been a normal healthy weight for her height, the analysis showing that dynamic loads imposed on her hip joints in routine walking were in the order of 200kgs, whereas the load imposed on her hip joint from this single rear impact was likely to be in the range of 10-25kg, which is in the order of 10 times less, and the self-evident conclusion that if there was a degradation of the hip joint from impact forces it would have resulted from the repeated loads of 200kgs, not a one-off load in the order of 20kgs;
e)there is a lack of contemporaneous reporting of the alleged hip pathology.
Mr Griffiths noted that following the accident there was no reference to hip/groin/pelvis/abdomen pathology for a period of two months, and there was then reference to the left groin pain with an ultrasound revealing a palpable lump corresponding anatomically regionally to the anterior superior iliac spine. Mr Griffiths notes the groin is the junctional area between the abdomen and the thigh, that is the region on the inside of the hip, which is a distinctly different anatomical region in the hip joint and that the interior superior iliac spine is the upper, outward projecting bones of the hip, also a distinctly different anatomical region in the lower hip joint. He also notes that some two and a half months after the accident in June 2017 there was a reference to mild osteophytic lipping (bone spurs grown between the adjacent bones of the acetabular cup/acetabulum, which is the socket of the hip joint and that there was no further reference to abnormal pathology in the region of the hip/groin/pelvis/abdomen until some 11 months after the subsequent motor accident in February 2018 where there is a reference to a laparoscopic sleeve gastrectomy, a surgical intervention designed to reduce weight. Mr Griffiths further notes that the first reference to hip pain was 19 months after the accident of February 2018, 27 months following the accident when there was a single reference to ongoing left hip pain.
The Insurer refers to reports of the orthopaedic surgeon who operated on the Claimant’s left hip, Dr Walker, the certificate of MAS Assessor Long, the clinical notes of the treating general practitioners, Dr Sharma and Dr Scarr and medical records from Victoria Tower Medical Centre in submitting that there was a lack of contemporaneous complaint of left hip pain after the accident and the evidence in relation to pre-motor vehicle accident symptoms to the parts of the body alleged to have been injured in the subject accident, and submits that the Claimant did not sustain any injury in the subject accident and that the surgical treatment recommended by Dr Walker is unrelated to any injury suffered in the accident.

Claimant’s MAS 2A Submissions dated 3 June 2021[22]
[22] CB p.1

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

Claimant’s MAS 4A Submissions dated 3 June 2021[23]

[23] CB p.12

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

Claimant’s Submissions in support of the application for review of Medical Assessor Preston’s Certificate dated 21 March 2022[24]

[24] CB p.28

The Claimant submits that Assessor Preston’s Certificate discloses material errors, both in relation to her assessment of causation of the left hip injury and in relation to her findings of the injuries arising from the accident to her left shoulder and cervical spine equate to 0% whole person impairment.
The Claimant refers to the Certificate of Medical Assessor Herald dated 17 March 2022 in which, it is submitted, he found that the left hip injury was causally related and that the surgery which the Claimant has already undertaken was reasonable and necessary.
These submissions note that Assessor Preston admitted that she finds causation of the left hip ‘more problematic’ and is unsure of whether ongoing symptoms are due to the labral tear when she states at page 12 of her Certificate:
“Subsequent diagnosis, however, are unlikely to be causally associated with the accident. Dr Horsley in his correspondence cast doubt whether ongoing symptoms were related to the previously diagnosed labral tear.”
The Claimant argues that if the labral tear was caused by the accident and ongoing symptoms have stemmed from that issue, that causation has in fact been established and Medical Assessor Preston has fallen into error with her assertion.
The Claimant further submits that Medical Assessor Preston, unlike Assessor Herald in his Certificate, has fallen into error in not applying the test in section 1.8 of the Guidelines which identifies two tests to determine whether an injury is related to a motor vehicle accident, the first being whether the motor vehicle accident could have caused or contributed to worsening of the impairment.

The Claimant submits that whilst Assessor Preston refers to Dr Walker’s finding that the Claimant’s diagnosis ‘is a bit of a mystery’, she does not mention the darkening of the bone when he performed surgery in concluding that it must have been from trauma, and that Assessor Preston does not analyse the material to such an extent that she takes into consideration this important point.
The Claimant again refers to the assessment report of Dr Gehr dated 12 March 2021 in which he assesses the Claimant has a whole person impairment as follows’:
a)5% whole person impairment of the cervical spine;
b)5% whole person impairment of the lumbar spine;
c)12% whole person impairment of the left knee;
d)4% whole person impairment of the left hip;
e)2% whole person impairment in relation to scarring.
The Claimant also submits that Assessor Preston has fallen into error by assuming that the Claimant’s left knee injury has resolved and that the Claimant did not advise her as such, and further that in regards to the injury to the Claimant’s cervical spine, Assessor Preston has failed to adequately examine the neck to find the muscle guarding and dysmetria and has thereby fallen into error.
The Claimant submits that had Assessor Preston conducted a proper examination and had regard to the significance of the Claimant’s restriction in range of motion and muscle guarding and spasming, conducted the required detailed examination of the Claimant’s range of motion in all areas of the spine and had approached assessment of causation of the left hip injury, then there is every likelihood that the Claimant’s whole person impairment would have been greater than the 5% found by Assessor Preston and every likelihood that it would have resulted in a total of 11% whole person impairment or greater given the assessment of Dr Gehr of a combined whole person impairment of 25%.

RE-EXAMINATION

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

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[25] and Insurance Australia Ltd v Marsh.[26]
[25] [2021] NSWCA 287 at [40], [41] and [45].
[26] [2022] NSWCA 31 at [11], [21], [64].

The Panel adopts the Medical Assessors’ examination report and adds the following further reasons.
Several Supreme Court authorities have discussed jurisdictional error by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence of record in contemporaneous notes.
In Norrington v QBE Insurance (Australia) Ltd[27] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[27] [2021] NSWSC 548 (Norrington).
The Court stated:[28]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”

Treatment disputes
[28] Norrington at [31].

The dispute is whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[29] The MAC Act characterises the disputes as separate issues.
[29] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]-[132].

Causation of need for treatment

The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[30]
[30] [2018] NSWSC 1710 (Phillips) at [29].
The Panel reviewed the surveillance video of the Claimant taken in June 2021. This was after the Claimant underwent the first left hip arthroscopy on 4 April 2019, the left sacroiliac joint neurotomy on 27 May 2020 and the second left hip arthroscopy on 25 August 2020 but before the examination of the Claimant by Assessor Dixon on 12 August 2022. The surveillance video showed the Claimant was using Canadian crutches consistent with the injury to the lateral cutaneous nerve of the left thigh resulting in meralgia paresthetica.
The Panel also refers to the opinions contained in the report of the biomechanical engineer, Michael Griffiths . Mr Griffiths deduces that the significance of the comorbidity of the Claimant’s gross obesity is that when walking, her hip joints were experiencing repeated dynamic loads alternating between zero and up to 200 kilos every time she took a step and that analysis shows that this is an order of magnitude greater than the approximately 20 kilogram force that might have been experienced at her hip joint in the single rear impact which is the subject of this claim .
In response to this, the orthopaedic surgeon, Dr Gehr, refers to the theory of Mr Griffiths that the loads across the hip are more likely related to the Claimant’s weight, which is above ideal BML, the argument being that the labral tears are degenerative from excessive forces across the hip joint over a long period of time related to the Claimant’s excessive weight. However, in the opinion of Dr Gehr, large forces across the hip joint over a long period of time causing tears at the labarum would also have caused changes in the articular surface, ie. osteoarthritis. Dr Gehr also refers to the opinion of Dr Walker in his report dated 28 July 2020 that he found the labral tear but that the chondral surface did not show osteoarthritis but a strained discolouration which he interpreted as being post traumatic, and his opinion that the MRI did not show significant damage[31]. In Dr Gehr’s opinion if the damage to the labrum was related to weight, it would not just cause a degenerative tear of the labrum in isolation, but would also damage the articular surface, causing osteoarthritis. In his opinion this report of the treating surgeon, Dr Walker, supports an isolated tear to the labrum with no osteoarthritis of the articular surface of the left hip, and excess weight would have caused damage to both surfaces He therefore concludes that the labral injury was traumatic in nature rather than degenerative, that is, it is not weight related, and in his opinion the impact forces involved in the accident caused the damage to the labrum[32].
[31] CB p.166
[32] CB pp.359-360
The Panel prefers the opinion of the orthopaedic surgeon, Dr Gehr, that impact forces involved in the accident caused the damage to the Claimant’s labrum over the opinion of the biomechanical engineer, Michael Griffiths, that the Claimant could not have injured the hip/groin/pelvis/abdomen region in the accident.
It is the Panel’s opinion that whilst the Claimant’s excessive weight could have been a factor in causing the tear of the labrum, this was caused or materially contributed to by the force of the impact of the rear end collision in the accident.

Reasonable and necessary

The Claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[33]
[33]See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[34] They include:
(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[34]        See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The Panel has determined that the treatment of the labral tear with arthroscopic surgery and repair was reasonable and necessary as it was causally related to the subject accident due to seatbelt injury which has also caused injury to the lateral cutaneous nerve of the left thigh resulting in meralgia paresthetica.
Examination on 12 August 2022 supports these diagnoses. The Claimant walked with a limp on the left and needed to use her crutches and had difficulty taking full weight on the left leg and her squat test was associated with low back pain and left groin pain. There was a positive trend Trendelenburg test on the left which is a test for hip dysfunction, and there was sensory loss in the left thigh in the distribution of the lateral cutaneous nerve associated with dysesthesia which was painful when touched and the Claimant was unable to wear trousers or jeans. The meralgia disturbs her sleep as does her groin pain and persisting low back pain. She was seen to have restriction of hip movement particularly on internal rotation which was associated with pain in the groin and discomfort in the surgical scar which was painful if accidentally bumped, the scar being in her left groin, showing pigmentary change. She was conscious of the 5cm long scar which she was able to readily localise and while not clearly visible in normal clothing, was very tender to touch on examination on 12 August 2022.
For the reasons set out above, the Panel has determined that:
a)The left hip arthroscopy and left hip repeat arthroscopy with LFC nerve neurolysis relate to the injuries caused by the motor accident; and
b)The left hip arthroscopy and left hip repeat arthroscopy with LFC nerve neurolysis are reasonable and necessary in the circumstances.

CONCLUSION

The Review Panel confirms the Certificate of Assessor Herald dated 17 March 2022.

[2023] NSWPICMP 133

6 April 2023