Meggitt v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 530
•17 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Meggitt v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 530 |
| CLAIMANT: | Kathryn Meggitt |
INSURER: | Australia Insurance Limited trading as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Dr Mohammed Assem |
| MEDICAL ASSESSOR: | Dr Chris Oates |
| DATE OF DECISION: | 17 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Medical Review Panel; Motor Accident Injuries Act 2017; minor injury; permanent impairment; whole person impairment; total right hip replacement surgery; cervical spine; lumbar spine; scarring; causation; Held – the Review Panel revokes the Certificate of Medical Assessor Cameron dated 6 April 2022 and issues a new Certificate. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Cameron dated 6 April 2022 and issues a new certificate determining that the following injuries caused by the motor accident are minor injuries: a. cervical spine – soft tissue injury; b. thoracic spine – soft tissue injury, and c. lumbar spine – soft tissue injury. The Review Panel determines that the following injuries caused by the motor accident are not minor injuries: a. right hip – aggravation of pre-existing right hip osteoarthritis, and b. scarring of right hip. The Review Panel determines that the following injury was not caused by the motor accident: a. right knee – soft tissue injury. The Review Panel determines that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: a. right hip - aggravation of pre-existing right hip osteoarthritis, and b. scarring of right hip. |
REASONS FOR DECISION
BACKGROUND
On 7 December 2018 Kathryn Meggitt (the claimant) was the driver of a vehicle which was rear ended by another vehicle (the accident).
Australia Insurance Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to make statutory payments to, for or on behalf of Ms Meggitt under the Motor Accident injuries Act 2017 (the MAI Act).
On 25 February 2019 Ms Meggitt lodged an Application for Personal Injury Benefits.
On 2 April 2019 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injuries sustained by Ms Meggitt were minor and that her entitlement to statutory benefits would cease from 7 June 2019.
On 5 May 2020 the insurer provided approval for the claimant to undergo right hip replacement surgery as a consequence of her accident-related hip injury.
On 24 November 2020 the insurer issued a notice to Ms Meggitt advising her that the insurer had estimated that her injuries had sufficiently recovered, and she had sustained a greater than 10% whole person impairment (WPI) in respect of her physical injury entitling her to recover damages for non-economic loss.
On 29 November 2020 Ms Meggitt lodged an application for common law damages.
On 22 February 2021 the insurer issued a liability notice to Ms Meggitt informing her that the insurer agreed their insured had breach their duty of care to her and that she had suffered injury, loss and damage but were unable to confirm she had sustained a non-minor injury and were continuing to undertake investigation as to whether the right hip replacement surgery was caused by the accident.
On 2 March 2021 the insurer issued a “Liability notice-benefits after 26 weeks” in which the insurer accepted liability for ongoing statutory benefits on the basis Ms Meggitt was not mostly at fault and had sustained more than a minor injury.
On 23 April 2021 the insurer issued a notice withdrawing the concession as to WPI and making a new determination that the claimant’s injuries do not exceed 10% WPI and that there was no entitlement to damages for non-economic loss.
Further on 23 April 2021 the insurer issued a notice confirming breach of duty of care by their insured but denying liability on the basis the claimant had sustained a minor injury.
On 12 May 2021 the claimant sought a review of both decisions dated 23 April 2021 and on 20 May 2021 the insurer issued Certificates of Determination – Internal review affirming each decision.
On 2 August 2021 the insurer issued a Liability Notice – Benefits after 26 weeks in which the insurer stated the claimant’s spinal injuries were soft tissue injuries and considered “minor” injuries under the MAI Act.[1] The insurer noted the hip condition was not causally related to the accident and was due to hip arthritis.
[1] AD1 p 662 .
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including:
(a) “the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage), and
(b) whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[2].
[2] Section 7.20 of the MAI Act.
The minor injury dispute was referred to Medical Assessor Cameron. He issued a certificate dated 6 April 2022 in which he certified that the following injuries sustained by Ms Meggitt were minor injuries for the purposes of the MAI Act and therefore, an assessment of the degree of permanent impairment was not required:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
Assessor Cameron certified the following injures were not caused by the motor accident:
· right hip – cartilage damage, partial thickness tear of the gluteus minimus tendon and post-traumatic trochanteric bursitis. Aggravation/exacerbation of arthritic changes in right hip;
· right knee - soft tissue injury and musculoskeletal injury, and
· scarring of right hip.
The claimant has sought a review of the certificate of Medical Assessor Cameron.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Cameron was lodged within 28 days of the date on which the certificate of Assessor Cameron was made available to the parties.
On 20 June 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission[3]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[4].
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The documents relied upon by the claimant were uploaded to the portal and marked AD1 and AD2. The documents relied upon by the insurer were uploaded to the portal and marked AD3. Those documents are limited to the insurer’s submissions, noting the insurer’s Reply has been included in the claimants bundle of documents marked AD1.
On 11 August 2022 the panel agreed a medical examination was required.
STATUTORY PROVISIONS
Minor injury
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4Diagnostic imaging is not considered necessary to assess minor injury.
5.5A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clause 5.7 of the Guidelines states that in assessing whether an injury to the neck or spine is a soft tissue injury an assessment of whether or not radiculopathy is present is essential. Clauses 5.8 and 5.9 are in the following terms:
“5.8Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
Permanent impairment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
CERTIFICATE UNDER REVIEW
Medical Assessor Cameron issued a certificate dated 6 April 2022 following an assessment on 22 March 2022.[7]
[7] AD1 p 7
The following injuries were referred to Assessor Cameron for assessment as to minor injury and as to permanent impairment:
· cervical spine - soft tissue injury, musculoskeletal injury, disc injury;
· thoracic spine - soft tissue injury, musculoskeletal injury, disc injury;
· lumbar spine - soft tissue injury, musculoskeletal injury, disc injury;
· right hip – cartilage damage, partial thickness tear of the gluteus minimus tendon, posttraumatic trochanteric bursitis. Aggravation/exacerbation of arthritic changes in right hip;
· right knee - soft tissue injury, musculoskeletal injury, and
· scarring of right hip.
Assessor Cameron found there was no evidence of a specific injury to the right hip in the accident and he noted that osteoarthritis of the right hip predated the accident. Because the scarring of the right hip is related to the hip replacement surgery Assessor Cameron found it was not causally related to the accident. He also found there was no evidence of a significant injury to the right knee.
He certified the following injuries were caused by the accident and were minor injuries:
· cervical spine - soft tissue injury;
· thoracic spine - soft tissue injury, and
· lumbar spine - soft tissue injury.
Assessor Cameron found the following injuries were not caused by the accident:
· right hip – cartilage damage, partial thickness tear of the gluteus minimus tendon and post-traumatic trochanteric bursitis. Aggravation/exacerbation of arthritic changes in right hip;
· right knee - soft tissue injury, musculoskeletal injury, and
· scarring of right hip.
Having regard to his findings as to minor injury Assessor Cameron determined that an assessment of permanent impairment was not required.
EVIDENCE BEFORE THE REVIEW PANEL
Ms Meggitt was 73 years of age at the time of the accident.
Photographs
Photographs of the claimant’s vehicle show significant damage to the rear of the vehicle.[8]
[8] AD1 p 55
Pre-accident treatment records
The insurer has provided a useful summary of the pre-accident records of New Farm Chiropractic pertaining to the right hip.[9] The Panel reproduces that summary with several alterations below:
[9] AD1 p 658
Date
Source
Summary
18.11.2008
Dr David Leach, chiropractor
Left lateral hip and buttock sore. The claimant taking strong pain killers for the past two weeks.
9.12.2013
David Leach
Right trap and right hip sore.
23.6.2014
Madeleine McIntyre, chiropractor.
Right hip sore after carrying heavy suitcase three weeks ago.
27.7.2014
David Leach
The claimant feeling pretty good but hips were still sore.
2.9.2016
David Leach
Lower back into right SIJ (sacroiliac joint)/hip. Ache while standing.
9.12.2016
David Leach
LBP after last, physio helped, low glute pain into Rt lat leg to ankle. Lt lower rib pain w cough – rib cart…
15.12.2016
David Leach
Temp improve, hips returned, B/L lat calf…
13.3.2017
Penny Miller, remedial massage therapist.
Right hip pain, unable to lay on both sides. Noted the claimant had a fall in her early teens whilst ice skating, whiplash on a boat in her 30’s and took nasal spray steroids and codeine in the morning.
13.3.2017
David Leach
Left side feeling good. Sore in right lower back. Right lateral hip and groin pain. Need new films.
20.3.2017
Penny Miller
Right hip did not feel like there had been any improvement as the pain was still there and took a few sessions to get results and changes.
27.3.2017
David Leach
Was good after last week. Still getting left and right lower back/hip pain.
3.4.2017
Penny Miller
Right hip pain. Not stretching. Walking 20 mins which aggravated it.
3.4.2017
David Leach
Left lower back pain and right lateral hip pain.
24.4.2017
Penny Miller
One hour massage with right front of shins. The claimant had right hip glute pain.
30.10.2017
David Leach
Flare hip right greater than left.
21.12.2017
David Leach
High step off stage. Flared right lower back into groin and hip. Hurt her right shoulder holding music.
5.2.2018
David Leach
Good until left lower back into hip/thigh after gardening.
12.3.2018
Penny Miller
The claimant suffering from right hip pain. Unable to sleep on hips again and has to sleep on back.
16.4.2018
David Leach
Neck and hips and lower back had regressed.
7.8.2018
David Leach
Great after last, another stumble set back – Rt shoulder/scalp. Rt LBP into groin. Lt ankle….
21.9.2018
David Leach
Pretty good until lifted pavers in garden. Rt LBP, rad into Rt knee….
8.11.2018
David Leach
Rt LBP after sitting in recliner…
23.11.2018
Massage notes
Right hip pain, still looking for the right recliner to sit in.
The Panel notes the clinical records of New Farm Chiropractic show numerous other attendances in relation to lower back pain and SIJ pain. There were also complaints recorded of right shoulder pain.
Riverside General Practice
Ms Meggitt first consulted Dr Rachael Eddywing on 23 March 2017 when she reported pain into the low back, long standing and with a feeling of less muscle strength in the lower legs. She further sought treatment at that practice in relation to lower back pain or SIJ pain on 15 August 2017, 16 February 2018, 21 February 2018 and 10 May 2018.
Kingscliff Acupuncture and Massage
Ms Meggitt attended for treatment in respect of lower back pain on 16 June 2017,
17 June 2017 and 19 June 2017 with a history of moving house recently and lifting a sewing machine.
Post-accident treatment records
Ambulance report
On 7 December 2018 ambulance attended the accident scene and reported Ms Meggitt was complaining of lower back pain and left neck pain. She refused transportation to hospital.
Ballina District Hospital
After the accident Ms Meggitt attended Ballina District Hospital.[10] The hospital report notes “since the accident has developed minor neck pain, upper and lower back pain and leg pain”. She was monitored for a few hours and given analgesia.
[10] AD1 p 102.
New Farm Chiropractic
Following the accident the claimant continued her attendances with David Leach, chiropractor and Ms Miller, remedial massage therapist at New Farm Chiropractic. The following table is a summary of those attendances in the period following the accident:[11]
[11] AD1 p 398.
Date
Source
Summary
10.12.2018
David Leach
Rear ended … car written off with impact … had T pain at the time, discharged with pain relief. Presents with new distribution of LBP/feels different, D & neck sore.
10.12.2018
Penny Miller
… R leg on brake, hands on steering wheel, head looking forward as had to brake suddenly. Tx gentle mid neck tps, L hip felt out post tx. David adjusted L SIJ after massage.
17.12.2018
David Leach
More Rt butt and groin now, neck still stiff.
17.12.2018
Penny Miller
Ck 1 hr R hip and legs. T & L hip more fluidy, R hip sensitive, … initial accident inflammation had gone down ant L ankle, L hip and att to ilium still recovering from trauma.
21.12.2018
David Leach
Rt Hip/glute/groin, D neck stiff/sore.
28.12.2018
David Leach
Feels getting worse in LB, Rt lat hip bursitis started. D & neck…
7.1.2019
David Leach
Some improve, still feeling Rt SIJ but aching into Rt thigh mostly …
14.1.2019
David Leach
Still sore into LB and Rt thigh …
18.1.2019
David Leach
Rt SI/J, lat Hip & Rt knee…
4.2.2019
Penny Miller
1 hr R hip and knee fall 10 days ago in yard tripped over hose twisted to fall on left side to protect R side.
4.2.2019
David Leach
Rt lat hip still sore, tight and Rt knee & shin, improved overall.
18.2.2019
David Leach
Sore Rt SIJ & lat hip. T into Rt scap, neck tight…
25.2.2019
David Leach
No progress w Rt knee, part sore on stairs; Rt LP into lat hip & thigh…
Application for personal injury benefits (the Application)
The claimant completed the application dated 25 February 2019.[12] She stated:
“The night of the accident I was very sore and in shock and had to take 2 painkillers in order to sleep. I experienced pain in my neck and mid back, lower back, back of my legs and down the sides of my body. This increased in the days following and for several weeks I couldn’t lie on my right side because of the pain. Whilst chiropractic adjustments and remedial massage therapy are definitely assisting my recovery, pain in my right side, my right leg down to my knee, the middle of my back and lower back comes and goes daily…”
Dr Loretta Weir, Kingscliff Beach Medical
[12] AD1 p 46
Ms Meggitt first consulted Dr Weir, general practitioner (GP) on 26 February 2019.[13] She recorded the accident on 7 December 2018 and reported the following ongoing pain issues:
“low back pain (exacerbation of previous) and mid-thoracic (new) and lower neck (new) and pain right side of pelvis to right knee.
Pain radiates down right side of pelvis, trochanteric and lateral thigh to knee.
The thoracic back pain and neck pain have largely resolved. …”
[13] AD1 p 209
On examination Dr Weir reported inter alia:
“knees – full range of motion but c/o of a tight feeling in right knee on full flexion.
tender over right side of pelvis – greater trochanteric/gluteus medius region.
hip range of motion for rotation is mildly reduced with pain lateral side of pelvis.
her back was not examined.”
Ms Meggitt continued to consult Dr Weir. On 7 March 2019 she reported in her clinical notes “mechanism of accident is consistent with causing gluteal injury and bursitis. She had depressed the brake pedally forcefully when her car was also being hit from behind…[sic]…”.
In reports addressed to the insurer dated 18 April 2019 and 2 May 2019 Dr Weir reported Ms Meggitt had ongoing bilateral hip pain, lower back pain, trochanteric pain and right knee pain.[14]
[14] AD1 228 and 229.
Dr Michael Tong, orthopaedic surgeon
Ms Meggitt saw Dr Tong about her right hip pain on 17 December 2019.[15] He reported she had previously suffered from pain about her right buttock and lower back prior to the accident. Since the examination Ms Meggitt reported she had been diagnosed as having trochanteric bursitis and had been having chiropractic and remedial massage treatment. She was taking Panadeine, her sleep was disturbed, and her walking distance affected.
[15] AD1 p 158.
On examination he reported:
“…she had positive Trendelenburg test on the right. Her right hip was irritable to range, with reduced abduction and internal rotation. Her leg lengths were approximately equal. Her knee was unremarkable to examine.”
On 20 January 2020 Dr Tong reported Ms Meggitt had undergone cortisone injection under CT control with no lasting improvement.[16] On examination he reported:
“She has positive Trendelenburg tests bilaterally and she walks with a Trendelenburg gait. Her right more so than the left hip was painful, reproduced with rotation in flexion. She had obligatory rotation of approximately 15º on flexion. Abduction was limited to approximately 20º with pain. She was tender over her trochanteric bursa bilaterally.”
[16] AD1 p 159.
Dr Tong also reported the plain X-rays of the hips were not that remarkable, particularly on the right, noting the arthritic changes were a little more advanced on the left. In his view the pain was caused by the right hip rather than the trochanteric bursitis. He referred Ms Meggitt for an MRI and CT scan of her hip and an MRI scan of her spine.
Ms Meggitt was reviewed by Dr Tong on 31 January 2022 when he reported the investigations confirmed significant arthritic changes about her right hip.[17] He recommended right hip replacement.
[17] AD1 p 161
Ms Meggitt underwent right total hip replacement surgery under the care of Dr Tong on 5 May 2020. [18]
[18] AD1 p 287
In a report dated 31 July 2020 Dr Tong reported Ms Meggitt continued to have pain about her lateral hip and groin which Dr Tong suspected was referred from the back.[19]
[19] AD1 p 295
In a report dated 13 April 2021 Dr Tong outlined his treatment of Ms Meggitt.[20] He concluded her hip symptoms were due to right hip arthritis which might have been exacerbated but were not caused by the accident.
[20] AD1 p 629
The claimant was noted to be suffering from trochanteric bursitis, but Dr Tong felt that most of her symptoms were related to hip arthritis rather than trochanteric bursitis. He noted scans had revealed “significant arthritic changes about the right hip”. She also had moderate arthritic changes about the spine and had a partial tear of the gluteus minimus which he suggested was common in her age group.
At the time of his last consultation with Ms Meggitt on 1 February 2021 Dr Tong noted she continued to complain of “pain about her back with pain radiating to her buttock and sometimes lateral thigh”. He reported the pain was “from her degenerate spine consistent with her age”. Dr Tong suggested he raised the possibility of fibromyalgia with her GP.
Ian Curnow, chiropractor
Ms Meggitt commenced treatment with Mr Curnow for chronic lower back pain which he considered had been exacerbated by the recovery from the hip replacement surgery in May 2020.[21]
Medico-legal reports
Dr Uthum K Dias, 26 February 2021
[21] AD1 p 297
Ms Meggitt was assessed by Dr Dias, occupational physician by video-link at the request of her lawyer.[22]
[22] AD1 p 121.
He reported she had suffered from chronic lower back pain for approximately 20 years prior to the accident, although the symptoms were well controlled with regular chiropractic treatment sessions and the occasional use of analgesia.
He reported Ms Meggitt had come to a stationary halt but the vehicle behind her failed to stop in time and collided with her vehicle at speed. He noted she sustained a whiplash try mechanism of injury to her neck and jarred her mid back, lower back, right hip and right knee. He reported:
“She recalls that she pushed hard on the brake to avoid a collision with the car in front and as a result her right hip and right knee were jarred due to the rear-end impact of the collision.”
Ms Meggitt reported she saw her chiropractor David Leach on 10 December 2018 complaining of symptoms of pain, stiffness and discomfort affecting her neck, mid back, low back and right hip region. She continued to have chiropractic treatment and remedial massage until 26 February 2019 when she consulted Dr Loretta Weir.
Dr Dias noted Ms Meggitt underwent a right total hip replacement on 5 May 2020. Since then, she had continued to suffer from ongoing right hip pain, stiffness and discomfort. She also had significant lower back pain and mild to moderate neck pain and stiffness. She no longer suffered from significant thoracic spine pain or right knee pain.
Dr Dias concluded Ms Meggitt had sustained an acute musculoligamentous strain of the cervical spine and aggravation of a pre-existing degenerative lumbar spondylosis, secondary to an acute musculoligamentous strain.
Dr Dias concluded Ms Meggitt has sustained a persistent aggravation of previously asymptomatic right hip osteoarthritis with associated post-traumatic trochanteric bursitis and an associated partial tear of the gluteus minimus tendon, secondary to an acute impaction injury. He concluded this was a non-minor injury.
He also concluded Ms Meggitt sustained soft tissue injuries to her right knee and thoracic spine which he found had resolved.
Dr Dias provided an assessment of WPI. He concluded Ms Meggitt had a cervicothoracic spine WPI rating of 5%, a lumbosacral spine WPI rating of 0% taking into account her pre-existing lumbar spine condition, a right hip WPI rating of 18% and an additional 1% WPI for scarring as a result of the accident.
Dr Frank Machart, 14 April 2021
Dr Machart assessed the claimant at the request of the insurer on 25 March 2021.[23] He concluded the claimant had sustained soft tissue injuries to the cervical, thoracic and lumbar spine in the accident.
[23] AD1 p 676
Dr Machart noted there was a history of lower back pain, pain radiating to the right hip, thigh and a history of pain affecting both hips for several years, more frequent in 2017 and 2018 consistent with degenerative osteoarthritis.
Dr Machart reported Ms Meggitt current symptoms as stiff joints, difficulties walking, pain in the right hip, lower back pain and neck stiffness and discomfort. He reported:
“She found it difficult to sit. Sitting tolerance was 1 hour. She found it difficult to reach her feet, get down to the ground. She goes to a podiatrist for cutting of her nails. Housework is difficult, including mopping, vacuuming, and cleaning showers. It is difficult for her to sleep on the right side. She lives in a house on her own. She does the best she can in terms of housework. She is looking for help with cleaning.”
Dr Machart concluded the pelvis and both hips were affected by osteoarthritis and that the mechanism of injury was not consistent with injury to the hip. Dr Machart indicated that there was no convincing evidence of anything structural, severe, or substantial, that altered the natural history of the hip arthritis, which eventually led to hip replacement. He found Ms Meggitt had sustained minor, soft tissue injury which would have resolved within six weeks.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 8 July 2021 in support of the initial dispute as to minor injury and WPI.[24]
[24] AD1 p 43
The claimant relied upon the opinion of Dr Dias to assert that the injuries to the right hip and scarring do not fall within the definition of minor injury. The claimant also relied upon the opinion of Dr Dias to establish that the claimant has sustained a WPI greater than 10%.
The claimant provided submissions dated 4 May 2022 addressing the determination to be made by the delegate to the President.[25]
[25] AD1 p 2
The claimant noted Assessor Cameron failed to have regard to the following clinical records in concluding that the claimant’s right hip and right knee injuries were not caused by the accident:
(a)clinical record of Penny Miller (remedial massage therapist) dated
17 December 2018: “right hip sensitive”;(b)clinical record of David Leach (chiropractor) dated 21 December 2018: “right hip…sore”;
(c)clinical record of David Leach (chiropractor) dated 28 December 2018: “feels getting worse…right lat hip bursitis started”;
(d)clinical record of David Leach (chiropractor) dated 14 January 2019: “lat hip & right knee”;
(e)report of Dr Loretta Weir (GP) dated 18 April 2018: “Kathryn Meggitt is currently having treatment for a motor car accident injury… she has ongoing bilateral hip pain, lower back pain, trochanteric pain and right knee pain”, and
(f)report of Dr Loretta Weir (GP) dated 2 May 2019: “she has ongoing bilateral hip pain…. And right knee pain… These are new problems following the accident”.
Insurer’s submissions
The insurer provided submissions dated 2 August 2021.
The insurer submits the claimant concedes that the injuries to the cervical spine, lumbar spine and knees are not classified as “non-minor” injuries for the purposes of the MAI Act.
The insurer disputes causation of the total right hip replacement surgery and submits that the surgery would have occurred but for the accident. The insurer states liability for the surgery was accepted in the absence of evidence from Dr Tong and without the benefit of the claimant’s pre-accident GP records.
The insurer submits there is no evidence to suggest a gluteal tear was caused by the accident:
“noting the findings of Dr Tong, the extensive history of buttock and hip pain which pre-dated the accident and the fact that the tear does not appear to have been present on 3 September 2019 (following the accident) with the ultrasound indicating that ‘gluteal tendons are intact’.”
The insurer submits the opinion of Dr Machart should be preferred to the opinion of
Dr Dias who recorded the claimant had no pre-accident hip symptomatology and was apparently not provided with the pre-accident records. The insurer submits that the right hip replacement and alleged gluteal tear were not caused by the accident.The insurer provided further submissions dated 31 May 2022 addressing the question to be determined by the delegate of the President in determining whether there was a material error in Assessor Cameron’s assessment.
MEDICAL EXAMINATION
Ms Meggitt is now 76 years of age. She was examined by Medical Assessor Oates on behalf of the Panel at his Brisbane rooms on 21 September 2022. Assessor Oates took a history from Ms Meggitt by video conference using Zoom for Business with end-to-end encryption on 14 September 2022. Assessor Oates identified Ms Meggitt by means of her driver’s licence. Aspects of Ms Meggitt’s history were clarified in a further video consultation on 30 September 2022.
Past history
In her general health, she had had a sinus operation in the past and had developed asthma after a para-influenza viral infection in 2015. Thereafter, she was on Symbicort and Avamys nasal spray as preventive measures for the two conditions. Prior to the accident, she enjoyed photography and singing in choirs, attending concerts and short walks daily with her pet dog.
In the past, she had worked as an accountant and then tried ESL teaching in a primary school for one year, before she returned to accounting, retiring at the age of 61. She receives an aged pension. She lives alone in a single level house on a battle-axe block. There are no steps. Before the accident, she did her own housework and yard work.
Ms Meggitt said she had a long history of chronic low back pain which was previously under good control with treatment. There was no past history of hip pain. There was no history of neck or upper back symptoms or injuries.
In 2005 or 2006, she was rear-ended and shunted into the car in front in a multi-car collision on Parramatta Road. She may have had some backache, but she can’t recall, and she did not make a compulsory third party claim.
She has been attending a very good chiropractor, David Leach on and off for about the last 16 years because of low back pain. She was progressing well and expected that she would get rid of the back pain, and in view of this had dropped back from fortnightly to monthly maintenance treatments in the period before the accident.
Assessor Oates sought to clarify the claimant’s history with the pre-accident treatment records, consisting mainly of chiropractic and remedial massage input during the further video conference on 30 September 2022. It was apparent to Assessor Oates that Ms Meggitt had her own notes she consulted during the video conference.
Ms Meggitt fell in a skating rink at age 13. She can't recall details of what, if any, body part was injured but she does not recall having time off school or having any treatment.
There was a boating incident in her 30s. Her then partner made a sudden turn in a 12 foot hired boat. She dropped the food she was serving to guests at the time and grabbed the side rails. This stopped her from falling but she twisted her body and developed neck pain. She thinks she was working as an accountant at the time. She does not recall time off work. She went straight to a physiotherapist on someone's recommendation from work. She attended physiotherapy but doesn't remember for how long until she plateaued in her improvement and thereafter, she attended a chiropractor, name unknown, until she felt her neck was “pretty much right”.
The first chiropractic entry from David Leach dated 9 October 2008 indicated complaints of left lower back pain radiating into the left hip, lateral thigh and left knee for over two years dating from a motor vehicle accident two years previously. Mr Leach recorded a long history of problems since sustaining whiplash in a boat 20 years earlier. Ms Meggitt reported a constant dull ache with intermittent sharp pain.
Ms Meggitt did not recall the entries of 9 December 2013 or 23 June 2014 referring to right hip soreness. She thinks the second entry referred to a trip to Sydney. She did not recall details of the attendance on 2 September 2016 for “lower back into right SIJ (sacroiliac joint) and hip with ache while standing”. She had a copy of chiropractic records dated 9 September 2016, indicating her low back had improved, and she thinks the treatment improved the back pain, which was radiating to the SIJ and the right hip.
Ms Meggitt stated the entry on 9 December 2016 was after she had spent one week in John Flynn Hospital with para influenza. She recalled excessive coughing had upset her lower back, with pain radiating from the back down the right leg to the ankle. She also recalled she could not sleep on the right side in hospital, although she was able to do so following treatment after her discharge from hospital. Ms Meggitt could not recall what body part was treated on 15 December 2016 where it was recorded “hips returned”. Entries on 13 March 2017 record right hip pain. Ms Meggitt could not recall what caused a flared up of the hips, but she thought it was lateral hip pain over the trochanter. She can't recall having tenderness in the right groin. The entry on
3 April 2017, refers to right hip pain aggravated after walking 20 minutes. Ms Meggitt thought the pain was probably to the lateral hip over the trochanter, as was the pain identified in the entry of 24 April 2017.
She did not have the X-ray of the pelvis dated 21 August 2017 in her possession, which showed the right hip joint was preserved.
Ms Meggitt though the entry of 30 October 2017 which indicated a flare up of hips right greater than left, was due to injuring the mid lumbar section when bending to put on her shoes.
Ms Meggitt recalled the incident of 21 December 2017 when she experienced a flare up of her right lower back pain radiating into the right groin and hip after stepping off a high stage.
Ms Meggitt was adamant that the right lower back groin and right hip pain were all connected pains, and she does not recall having right groin pain occur at a separate time from the low back pain.
She didn't recall an attendance on 12 March 2018 when it was recorded, she had right hip pain, and couldn't sleep on her side, although she noted there was no mention of it in the notes of her chiropractic visit one week later.
In respect to the attendance on 16 April 2018 Ms Meggitt stated she had attended a chiropractor in Kingscliff but did not trust him to treat her spine, so she returned to David Leach with right hip tightness and pain. Ms Meggitt could not recall the cause of those symptoms.
Ms Meggitt recalled the circumstances of the 7 August 2018 entry, having experienced right lower back pain radiating into the groin when she fell on the footpath. Although according to her notes this visit took place on 14 August 2018.
In respect of the attendance on 21 September 2018, Ms Meggitt remembered lifting pavers and experiencing right lower back pain radiating down the leg into the right knee although she is uncertain about the date. Her notes of 4 October 2018 say she was pretty good until she lifted pavers in the garden.
Ms Meggitt recalled on 8 November 2018 she had a flare up of back pain after sitting having coffee.
Ms Meggitt clarified the last time she saw the chiropractor before the accident was on 22 November 2018, when she had right lower back pain after sitting in a recliner. Her notes indicate a discrepancy between the dates recorded by New Farm Chiropractic and her own records. Ms Meggitt believed that the entry dated 23 November 2018, viz., ‘right hip pain - still looking for the right recliner to sit in’, was actually on
10 December 2018, which was her first visit to the chiropractor three days after the accident. She had been told previously to attend within three days of a flare up of symptoms, to avoid a maladaptive posture setting in.Referring to the entry of Mr Leach of 10 December 2018 Assessor Oates asked
Ms Meggitt to explain how the “new distribution of lower back pain” differed from the earlier distribution of pain. She could not say how it was different, she did not think any new areas of the body were affected but thought it was most likely there was an increased intensity in the pain.Ms Meggitt’s notes otherwise agreed with the dates of attendance with the chiropractor and massage therapist Penny Miller referred to in the Panel report, apart from an extra visit on 29 January 2019 with the chiropractor, and on 11 March 2019 with both the chiropractor, and the massage therapist.
History of the accident
Ms Meggitt is left hand dominant. She told me on 7 December 2018 at about 4.30pm, when there was a lot of traffic around in Ballina, she was driving a 2013 Nissan Tiida sedan with automatic transmission. She had her pet dog in the back. The car in front of her in the traffic stopped suddenly and she had to brake forcefully from a speed of about 30-40kph to a dead stop. She was pressing firmly on the brake with her outstretched right leg and had her hands firmly gripping the steering wheel.
Fortunately, she did not hit the car in front but a young P-plate driver in a smallish sedan behind her rear-ended her vehicle. Her car was pushed forward but did not hit the car in front. Police and ambulance attended after they were called by the driver two cars ahead. Her car was still driveable, so she could get off the road. She was in shock at the time.
The friend whom she had been visiting in Ballina that day was telephoned and came and collected her and took her and her dog to her place. Her car was subsequently written off. The ambulance officer advised her to go to Ballina District Hospital, but she declined. Her friend later drove her to the hospital, where she was complaining of neck and mid and lower back pain, and she recalls pain along the right flank and down the back of both legs.
She told the Emergency Department medical officer that she had a good chiropractor in Brisbane and the doctor agreed with this treatment. Three days after the accident, she attended the chiropractor, using a rental car, and she also had a massage at the same venue. She was told she had a lot of protective fluid around the painful areas, and this was treated by lymphatic drainage.
She recalls one week after the accident, she developed lateral right hip pain which progressively worsened and spread to the groin and upper thigh. She tried various modalities apart from the chiropractic and remedial massage, including physiotherapy, but the latter just flared up the symptoms in her hip. She also tried a gymnasium program, but it did not help. She doesn’t recall having any other symptomatic areas.
She came under the care of her GP, Dr Weir whom she saw for the first time on
26 February 2019 after finding out that her usual GP in Tweed Heads had gone away on a one-year sabbatical. She had an X-ray of the pelvis and hip. The GP record indicates that her thoracic and neck symptoms had improved.She had continuing low back pain, but she says the right hip was by far the worst site of pain and radiated to the right groin and thigh. Dr Weir ordered an ultrasound of the right hip which showed trochanteric bursitis. She also had pain in the right knee which she was told was referred down from the hip. She had an ultrasound of the right knee to check if there were any local problems in the knee, however there weren’t.
She was referred to Dr Tong, orthopaedic surgeon whom she saw on
17 December 2019 regarding right hip and groin pain which was not improving with conservative treatment. He found her right hip was irritable with reduced range of abduction and internal rotation. She had a click in the right hip area which was only present after the accident but never before then. He opined that the accident had exacerbated prior asymptomatic hip osteoarthritis.He ordered a CT-guided right hip joint cortisone injection performed on 9 January 2020 but there was no benefit from this. He ordered an MRI scan and CT scan of the hip and lumbar spine, following which he advised a right total hip replacement. This was done at John Flynn Hospital in Tugun on 5 May 2020. This was paid for by the insurer.
Ms Meggitt tells me the insurer later revoked liability for her hip condition.Dr Tong said she could be discharged about one week after the operation, but she was barely able to get out of bed and she remonstrated with him and was then transferred to the rehabilitation section of the hospital for two weeks.
She was told to avoid any chiropractic type treatment for the next few months, so took Endone and Palexia. She had physiotherapy from a practitioner near to Dr Tong for six weeks post-operatively. She was given exercises which she found quite helpful.
She said that after the total hip replacement, the audible clicking, which was coming from either the right hip or right knee stopped. However, she still could not lie on her right side because of lateral hip pain.
By 18 months after the operation, the right groin pain had disappeared, and the right lateral trochanteric bursal hip pain had almost disappeared until she fell out of bed. Following this, she still has lateral right hip trochanteric pain, running down the anterior thigh to the knee. She said the total hip replacement had had no effect on the low back pain, although she had been told it may have some effect before the operation. She says she doesn't have any left hip problems. This would indicate the total right hip replacement has been successful in relieving pain originating in the hip joint.
Current status
She has not been able to sleep well since the accident and can’t sit or stand too long because of middle and upper back pain. She also gets soreness in the lower back, right groin and lateral right hip. Her low back, which was a pre-existing source of pain, is much worse since the accident.
Before the accident, she could sit all day, but this is not the case now. She has to sit on a cushion on an ergonomic chair and she has had to put padding on the car seat. She doesn’t have any neck pain now but doesn’t seem to have full range of movement.
Without analgesics or her cold pack treatment in the mornings, she can only walk for 15 minutes but can manage half an hour with treatment. She uses the railing on stairs and ascends and descends one at a time. Driving is limited to half an hour on a good day because of low back pain. She used to be able to drive to Sydney without difficulty.
She wakes up several times during the night with pain. Bending and twisting increase low back pain and she can sit for under half an hour and finds a lot of seats are uncomfortable, so her outings are limited. She can’t stand still to prepare food and cook, so is not as social as she was before the accident.
She can’t bend and twist to mop. She uses an upright lightweight vacuum cleaner. She can’t bend to the dishwasher, so uses the sink now, and can’t bend to clean out the bottom of the shower. She can’t stand for choir practice or to participate in singing performances. She has had to get a gardener since the accident, as she can no longer attend to these jobs. She uses a reacher device to put pants on her right leg and to pick up the feeding bowls for her dog.
Current treatment
She remains under the care of Dr Weir. She does exercises at home and goes for short walks with her dog.
She sees the local physiotherapist and has been given a good exercise from him for the middle to upper back pain which still troubles her.
She sees the chiropractor for right groin and lateral thigh pain. She was attending once a month but after a fall out of bed on 1 March 2022 she has been attending once a fortnight. Following the fall, she had an X-ray which fortunately showed no interference in the right hip prosthesis.
She takes Panadol Osteo two tablets three times a day, Palexia 50mg in the morning, Tramadol 50mg at night, and Movicol for constipation side-effects of medication.
Investigations
From the file
Pre-accident
21 August 2017 – X-ray pelvis-history of right sacroiliac joint pain? Osteoarthritis - the sacroiliac joints appeared normal. Mild degenerative change in the left hip joint with mild joint space narrowing and spurring. The right hip joint was preserved. Minor degenerative change in the lower lumbar spine. There is no focal osseous abnormality or soft tissue calcification.
Post-accident
28 February 2019 – X-ray pelvis, right hip and both knees – Right hip osteoarthritis with milder changes noted in the left hip joint. Mild joint space narrowing, irregular joint margins and early osteophyte in the knee joints bilaterally. Mild patellofemoral joint degenerative change bilaterally.
1 March 2019 – Ultrasound right hip – Large osteophyte noted in the anterior hip joint. No joint effusion. Thickened trochanteric bursa which is tender to probe pressure consistent with bursitis. No gluteal tendinopathy or tear and no subgluteal bursitis.
1 May 2019 – Ultrasound right knee – Mild suprapatellar bursal effusion. No other abnormality.
3 September 2019 – Ultrasound right hip – Gluteal tendons are intact. Mild trochanteric bursal thickening with probe tenderness suggesting bursitis. No joint effusion.
9 January 2020 – CT-guided right hip injection – Celestone and Bupivacaine injected into right hip joint without complication.
9 January 2020 – X-ray pelvis and right hip – No significant interval change from previous study of 2017. Mild loss of left hip joint space with well-preserved right hip joint space.
28 January 2020 – CT pelvis and right hip, MRI right pelvis and right hip, and MRI lumbar spine – Bilateral osteoarthrosis of hip joints with joint space narrowing and marginal osteophytes, worse on the left side. Spurring at greater trochanters bilaterally. Impression: Moderate right hip osteoarthrosis with partial tear with tendinopathy and para-tendonitis of the gluteus minimus tendon. Mild trochanteric bursitis. In the lumbar spine there is moderate multi-level disc degeneration and lower lumbar facet joint osteoarthrosis. No significant focal disc protrusion or neural compressive disease.
NOTE - There is an inconsistency between the results of the X-ray of the right hip dated 21 August 2017 and 9 January 2020 which demonstrated a normal right hip joint, with the results of the CT scan and MRI scan of the right hip, performed shortly afterwards on 28 January 2020, both of which reported moderate right hip osteoarthritis. The X-ray of 9 January 2020 referred to possible right hip joint osteochondral change at the superolateral acetabulum, which was also seen in the
X-ray of 21 Aug 2017. This suggests there was osteoarthritic change present in the right hip joint in 2017, prior to the accident. The latter scans are more accurate investigations for joint architecture and call into doubt that the right hip joint was normal before the accident.6 May 2020 – X-ray pelvis and right hip – Recent right THR with no hardware complication. Moderate degenerative change of the contralateral left hip joint is noted.
15 June 2020 – X-ray pelvis and right hip – The right total hip replacement is enlocated and appears satisfactory with no peri-prosthetic fracture or increased lucency.
Imaging brought to the examination
4 April 2022 – X-ray pelvis and right hip – Previous total hip replacement. Increasing pain around hip, groin and anterior thigh – Comparison made with previous X-ray dated 29 January 2021 – Right total hip replacement insitu with no peri-prosthetic complication. Mild to moderate degenerative changes of the left hip joint. No acute fracture and normal hip joint alignment. Overall, the appearances are unchanged when compared to the previous X-ray. Further evaluation with ultrasound can be considered to exclude underlying soft tissue injury.
Clinical examination
Ms Meggitt was of solid build with height 157cm and weight 87kg. She stood with a kyphotic stoop at the thoracolumbar junction. She walked slowly but there was no limp. She sat in discomfort. Dressing and undressing were not observed. She transferred in discomfort out of the chair and on and off the examination couch.
Lumbar spine
Lordosis was flat. Flexion and extension were half normal. Lateral flexion one-third normal bilaterally and rotation one-half normal bilaterally. Squatting and heel and toe walking was not tested in view of her frailty. Reflexes were symmetrical in the lower limbs with plantar responses both flexor. Power and sensation in the lower limbs normal.
Supine straight leg raising; right equals left equals 40° limited by complaints of back pain. Stretch test negative. Thigh girth; right 48cm, left 47cm at 10cm above superior patellar pole. Leg girth; right 36cm, left 37cm at maximal circumference.
There was bilateral lumbar muscle spasm from mid to lower back. There was widespread tenderness from the lower thoracic spine to the mid lumbar, centrally and bilaterally.
Cervical spine
Poke-necked contour. Flexion and extension one-half normal. Lateral flexion one-quarter normal bilaterally. Rotation one-quarter normal bilaterally. Tightness in the upper trapezii and lower paracervical muscles bilaterally. No tenderness. Reflexes, power and sensation in the upper limbs were normal.
Upper arm girth; right 36cm, left 35cm measured at 10cm above the elbow crease. Forearm girth; right equals left both measuring 25cm at 5cm below the elbow crease.
Right and left hips
Range of movement measured with a goniometer. Flexion: right 80°, left 100°. Extension: right equals left equals 0°. Abduction: right equals left equals 40°. Adduction: right 20°, left 30°. Internal rotation: right 10°, left 25°. External rotation: right 20°, left 40°.
Right and left knees
Range of movement measured with a goniometer. Flexion: right 0-110°, left 0-110°. Both knee joints were stable in anteroposterior and mediolateral directions. There was no patellofemoral crepitus or pain on patellar compression in either knee.
Scar
There was a 16cm well-healed, thin oblique scar over the lateral aspect of the right hip. There were no trophic changes. There was no adherence and no contour defect. There were no visible suture or staple marks. Sensation about the scar was intact.
Consistency
Ms Meggitt was consistent in her clinical presentation at the time of re-examination. However, the Panel notes there was inconsistency in the past history with respect to the right hip.
When asked why she told Assessor Oates, and other medical examiners, that she had no history of hip pain before the accident she explained that she always thought the low back was the main problem. She did not regard the hips as a problem and could not recall ever having had hip or groin pain occurring separately from low back pain before the accident. Assessor Oates asked her where the right hip pain was situated before the accident and she indicated the lateral aspect, pointing to the trochanteric area.
An inconsistency about imaging is outlined in the investigations section above.
DIAGNOSIS
Ms Meggitt sustained soft tissue injuries to the cervical spine and lumbar spine, and aggravated pre-existing asymptomatic right hip osteoarthritis. There was no evidence of direct injury to the right knee, rather right knee symptoms were referred from the right hip. There was also a soft tissue injury to the thoracic spine. The diagnoses were based on the file evidence, results of clinical examination and special investigations.
CAUSATION AND REASONS
The accident was a cause of soft tissue injury to the cervical, thoracic and lumbar spine, and a cause of aggravation to pre-existing degenerative changes of the right hip. There was a history of chronic low back pain which was coming under good control with extended periods of chiropractic treatment. Just prior to the subject accident, the frequency of treatment had been dropped from fortnightly to monthly maintenance treatments. The symptoms affecting the cervicothoracic and lumbar spine are mentioned in the ambulance record and hospital record from the date of accident.
The Panel noted that there was a substantial impact from the rear, the claimant’s right leg was braced hard on the brake pedal, with her leg in an extended position. This is the history recorded by Penny Miller on 10 December 2018, by Dr Weir on
7 March 2019, by Dr Tong in his report dated 17 December 2019 and by Dr Dias in his report dated 26 February 2021.There was a fall in her yard about 10 days after the accident, but Ms Meggitt protected the symptomatic right side by falling on the left side.
Ms Meggitt reported that her pain felt different after the accident. Both Penny Miller and David Leach reported increasing complaints of right hip pain in the days following the accident. On 17 December 2018 Ms Miller reported “right hip sensitive”, on
21 December 2018 Mr Leach reported “right hip…sore”, on 28 December 2018 he recorded “feels getting worse…right lat hip bursitis started” and on 14 January 2019 he recorded “lat hip & right knee”. The Application completed by Ms Meggitt on
25 February 2019 referred to increased pain on the right side and an inability to lie on her right side because of pain. On 26 February 2019 Dr Weir reported pain to the right side of the pelvis to the right knee and on examination she noted hip range of motion was reduced with pain on the lateral side of the pelvis. Ms Meggitt undertook extended conservative treatment before she was referred to Dr Tong in respect of her right hip pain on 17 December 2019.
Noting the motor accident does not have to be a sole cause as long as it is a contributing cause which is more than negligible the Panel is satisfied that the mechanism of injury was sufficient to aggravate the underlying right hip osteoarthritis causing increased pain and disability and resulting in the need for right total hip replacement surgery undergone on 5 May 2020. The Panel also notes the surgery was successful in relieving pain originating in the right hip joint.
The Panel finds the partial tear of the gluteus minimus was merely a coincidental finding on the imaging, it did not alter the course of treatment and as noted by Dr Tong was common in Ms Meggitt’s age group.
MINOR INJURY
Cervical spine
This area was affected by soft tissue injury, but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. There was no evidence of radiculopathy. The cervical spine injury is a minor injury.
Thoracic spine
This region was affected by soft tissue injury, but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. There was no evidence of radiculopathy. The thoracic spine injury is a minor injury.
Lumbar spine
This area was affected by soft tissue injury, but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. There was no evidence of radiculopathy. The lumbar spine injury is therefore a minor injury.
Right hip
This region was affected by aggravation/ exacerbation of presumed arthritic changes in the joint. This condition resulted in the need for total hip joint replacement. The injury is not confined to tissue that connects, supports, or surrounds, other structures such as muscles, tendons, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels or synovial membranes, therefore it is not a minor injury.
IMPAIRMENT
Cervical spine
There is symmetric loss of active range of motion with generalised muscle stiffness and no radiculopathy. Symptoms are present but there are no differentiators to place the injury in a higher category than DRE Cervicothoracic Category I giving 0% WPI. There are no non-verifiable radicular complaints and no guarding.
Thoracic spine
There is symmetric loss of active range of motion with muscle stiffness but no guarding, and no non-verifiable radicular complaints. There is no radiculopathy. There are symptoms and this places her in DRE Thoracolumbar Category I giving 0% WPI.
Lumbar spine
There is symmetric loss of active range of motion with muscle spasm but no guarding, no non-verifiable radicular complaints, and no radiculopathy. The radiating symptoms affecting the right lower extremity from hip to groin and knee arise from the hip rather than the lumbar spine. The differentiators present place her in DRE Lumbosacral Category I giving 0% WPI.
Right hip
In assessment permanent impairment under the AMA 4 Guides the Panel refers to the rating for hip replacement results in table 65 on page 87. Pain 44 points, limp 11 points, supportive device 11 points, distance walked 8 points, stair climbing 2 points, shoes and socks 2 points, sitting 2 points, and public transport 1 point. Deformity 5 points, noting there was no leg length discrepancy. Range of motion 2 points. Adding these gives 53 points. This gives a good result, which is 15%WPI.
There was abundant evidence to indicate that the right hip region was symptomatic prior to the accident, either arising directly from the hip and/or arising from referred symptoms from the lumbar spine. There was no file evidence of any objective abnormality affecting the hip, for example documented reduced range of movement, cartilage interval loss on hip X-ray or altered gait. Hence, there is no mechanism under the Motor Accident Guides to make a deduction for a pre-existing condition.
Scar
The operative scar at the right hip was well healed, non-adherent, had no contour defect, no trophic change, sensation was intact, there were no staple or suture marks, and only mild contrast with surrounding skin. The best fit under TEMSKI was 0% WPI.
The following table summarises the Panel’s findings as to WPI:
| Body Part or System | AMA Guides/Guidelines References | Permanent (YES/NO) | Current %WPI | %WPI from pre-existing OR subsequent causes | %WPI due to motor accident | |
| 1 | Cervical spine | AMA4 ch3 T73 p110 DRE1 | YES | 0 | 0 | 0 |
| 2 | Thoracic spine | AMA4 ch3 T74 p111 DRE1 | YES | 0 | 0 | 0 |
| 3 | Lumbar spine | AMA4 ch3 T72 p110 DRE1 | YES | 0 | 0 | 0 |
| 4 | Right hip | AMA4 ch3 T65 p87 | YES | 15 | 0 | 15 |
| 5 | Scarring | Guidelines T6.18 p136 TEMSKI | YES | 0 | 0 | 0 |
0
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