QBE Insurance (Australia) Limited v Kolyvas
[2022] NSWPICMP 330
•17 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Kolyvas [2022] NSWPICMP 330 |
| CLAIMANT: | Karen Kolyvas |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW Panel: | Principal Member John Harris Medical Assessor Shane Moloney |
| DATE OF DECISION: | 17 August 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 6 October 2016 when her vehicle was hit at the side causing it to spin; the claimant underwent a total left hip replacement six months prior to the motor accident; revision surgery of the hip replacement was undertaken in 2018 due to impingement caused by the acetabular cup which protruded by 1 cm causing the iliopsoas tendon to spasm and causing left groin pain; the principal issue was whether the motor accident contributed to the impingement of the iliopsoas tendon and the need for revision hip surgery in 2018; Held — The Panel was not satisfied that the motor accident contributed to the impingement and the left groin pain; the claimant’s evidence and contemporaneous history was that the left groin pain developed 14 days after the motor accident; the contemporaneous notes recorded bruising to the right hip only which indicated that there was no direct trauma to the left hip; the pre-accident x-rays showed acetabular protrusion by 1 cm which could lead to iliopsoas impingement and groin pain at any time between 1 and 96 months after the initial hip surgery; findings made that the motor accident did not contribute to the impingement of the iliopsoas tendon and development of left groin pain; the consequences of the replacement hip surgery were not due to the motor accident; the Panel assessed the cervical spine at DRE 1 despite ongoing symptoms; findings made concerning the numerous treatment disputes referred to the Panel. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. The assessment made by the review panel under section 63(4) is as follows: The Panel revokes the certificate of Medical Assessor Dixon dated 10 August 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is not greater than 10%: a) cervical spine injury; b) soft tissue injuries to the abdomen and right hip which resolved, and c) soft tissue injury to the right shoulder which resolved. Review Panel Assessment of Treatment and Care Certificate issued under section 63 of the Motor Accidents Compensation Act 1999. The Review Panel revokes the replacement certificate of Medical Assessor Dixon dated 10 August 2021 and issues the following certificate: a) All of the treatment disputes are not causatively related to the injury sustained in the subject accident. b) All of the treatment disputes are not reasonable and necessary in relation to the injury sustained in the subject accident. |
REASONS
BACKGROUND
Ms Karen Kolyvas (the claimant) was involved in a motor accident on 6 October 2016 when her vehicle was hit on the front corner causing it to spin around.
The insurer insured the owner and driver of the other motor vehicle for liability to pay
Ms Kolyvas any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).Ms Kolyvas suffered from congenital slipped capital femoral epiphysis which was pinned at 10 years of age. She underwent a left total hip replacement in April 2016 (THR). In November 2018 Ms Kolyvas underwent a revision total hip replacement.
A critical issue in this matter is whether the onset of left groin pain and the need for the revision total hip replacement was causatively related to the motor accident.
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10% and whether various treatment are “reasonable and necessary in the circumstances” or relates to the injuries caused by the motor accident. These constitute medical disputes within the meaning of the Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A 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[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor Dixon who issued a Medical Assessment Certificate dated 10 August 2021.
Medical Assessor Dixon found that Ms Kolyvas sustained a whiplash injury to her neck and bruising to her pelvis, left hip and legs from the seat belt. The motor accident caused a disruption of the previous hip replacement which required revision arthroplasty. The impairment was assessed at 17%. The Medical Assessor assessed a portion of the treatment, particularly that related to the revision hip replacement, as being reasonable and necessary and caused by the motor accident.
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.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were 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 (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 Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. Comprehensive bundles were provided by the parties. The claimant also forwarded scans to the Medical Assessors. The scans are reviewed later in these Reasons.
TREATMENT DISPUTES
The treatment disputes referred to the Medical Assessor were described as:
“1. Whether past surgery (revision of left total hip replacement November 2018) as provided by Dr Randhawa is causally related to the injury sustained in the subject accident
2. Whether past surgery (revision of left total hip replacement in November 2018) as provided by Dr Randhawa is reasonable and necessary in relation to the injury sustained in the subject accident
3. Whether 0-2 hip replacements from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident
4. Whether 0-2 hip replacements from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
5. Whether 0-12 GP consultations each year, for the claimant’s physical injuries, from the date of the MAS assessment, and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident
6. Whether 0-12 GP consultations each year, for the claimant’s physical injuries, from the date of the MAS assessment, and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
7. Whether 0-2 consultations with an orthopaedic surgeon per year, from the date of the MAS assessment and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy, is causally related to the injury sustained in the subject accident
8. Whether 0-2 consultations with an orthopaedic surgeon per year, from the date of the MAS assessment and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy, is reasonable and necessary in relation to the injury sustained in the subject accident
9. Whether 0-2 consultations with a neurologist per year, regarding the injury to the claimant’s hip (arising from the left total hip replacement in 2018) from the date of the MAS assessment and ongoing, for the next 0-30 years, or remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident
10. Whether 0-2 consultations with a neurologist per year, regarding the injury to the claimant’s hip (arising from the left total hip replacement in 2018) from the date of the MAS assessment and ongoing, for the next 0-30 years, or remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
11. Whether 0-8 physiotherapy consultations per year, from the date of the MAS assessment and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident
12. Whether 0-8 physiotherapy consultations per year, from the date of the MAS assessment and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
13. Whether 0-8 osteopathy consultations per year, from the date of the MAS assessment and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident
14. Whether 0-8 osteopathy consultations per year, from the date of the MAS assessment and ongoing for the next 0-30 years, or remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
15. Whether any type of radiological investigations, for the injuries to the lower back and to the cervical and lumbar spines, at any frequency and for any duration, from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectancy is causally related to the injury sustained in the subject accident
16. Whether any type of radiological investigations, for the injuries to the lower back and to the cervical and lumbar spines, at any frequency and for any duration, from the date of the MAS assessment and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injury sustained in the subject accident
17. Whether any amount of Endep, at any frequency, for any length of time from the date of the MAS assessment and ongoing, for the remainder of the claimant’s life expectancy, is causally related to the injury sustained in the subject accident
18. Whether any amount of Endep, at any frequency, for any length of time from the date of the MAS assessment and ongoing, for the remainder of the claimant’s life expectancy, is reasonable and necessary in relation to the injury sustained in the subject accident
19. Whether any amount of Endone, at any frequency, for any length of time from the date of the MAS assessment and ongoing, for the remainder of the claimant’s life expectancy, is causally related to the injury sustained in the subject accident
20. Whether any amount of Endone, at any frequency, for any length of time from the date of the MAS assessment and ongoing, for the remainder of the claimant’s life expectancy, is reasonable and necessary in relation to the injury sustained in the subject accident
21. Whether any amount of Mersyndol Forte, at any frequency, for any length of time from the date of the MAS assessment and ongoing, for the remainder of the claimant’s life expectancy, is causally related to the injury sustained in the subject accident
22. Whether any amount of Mersyndol Forte, at any frequency, for any length of time from the date of the MAS assessment and ongoing, for the remainder of the claimant’s life expectancy, is reasonable and necessary in relation to the injury sustained in the subject accident”
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.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[10]. In Raina v CIC Allianz Insurance Ltd[11] 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), ss5D 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.”
[10] See s 3B(2) of the CL Act.
[11] [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.
TOTAL HIP REPLACEMENT
The four components of an artificial hip are the femoral stem, femoral ball, liner and the acetabular cup. The acetabular cup replaces the socket of the hip bone, which fits into the head of the femur.
If the acetabular cup is malpositioned, it can cause iliopsoas impingement and tendinitis.
Following the THR, the acetabular component was protruding by approximately 1 cm. The post THR scans, viewed by the Medical Assessors which included an orthopaedic surgeon with a speciality in hip replacements, show the protrusion which was otherwise identified by Dr Randhawa when he performed the revision hip surgery in November 2018.
Impingement of the iliopsoas tendon occurs secondary to a malpositioned acetabular cup. The onset of symptoms occurs in a period from 1 to 96 months following the hip replacement.[12]
[12] Page 338 of the Article referenced at [32] and footnote 13 herein.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction and further material following the second Direction. The Panel requested and were provided with the reports of Dr Breit which were not included in the original bundles.
The Panel provided the parties with an article titled “Anterior Iliopsoas Impingement and Tendinitis after Total Hip Arthroplasty”[13] (the article). No further submissions were filed in response to the provision of this article.
[13] Dr Paul Lachiewicz and Dr Justin Kauk, Journal of the American Academy of Orthopaedic Surgeons, June 2009, Vol 17, No 6, page 337.
Pre-accident records
There are handwritten records from Dr Maximos/Famcare Medical Practice.[14] Some of the notes are difficult to read. The following is a summary of relevant portions of the notes noting that there are frequent prescriptions for Mersyndol forte not summarised below:
[14] Insurer’s bundle, pages 64.
“21 June 2005 – mid thoracic back pain and tender up to neck – prescribed Mersyndol forte.
27 February 2006 – left hip pain.
19 July 2006 – severe low back pain referred for CT scan.
6 March 2007 – hip and low back pain – referred for CT scan, Mersyndol forte.
6 September 2010 – left sided back pain.
13 May 2011 – long history of back pain, prescribed Mersyndol forte and referred for Ct scan.
15 December 2011 – left neck pain radiating to left arm; referred for CT scan.
27 November 2013 – mid back pain radiating along left upper arm; referred for CT scan and script for Mersyndol forte.
5 May 2015 – right sided neck pain, prescribed Targin.
17 November 2015 – back and neck pain, pins and needles in both hands.
17 February 2016 – going for left THR, prescribed endone.
14 March 2016 – prescribed Mersyndol forte and endone.
27 April 2016 – Had left THR, prescriptions for pain control.
11 May 2016 – prescribed endone.
25 May 2016 – prescribed Mersyndol forte.
15 June 2016 – Eight weeks post left THR, having some pain. Prescribed Mersyndol and endone.
29 June 2016 - Prescribed Mersyndol forte and endone.
14 July 2016 – Prescribed endone.
4 August 2016 – Pain left groin – referred for ultrasound. Reference in notes to “scripts”
1 September 2016 - Prescribed endone.
27 September 2016 - Pain right hip, prescribed endone.”
Dr Edward Graham, surgeon, initially examined Ms Kolyvas on 25 January 2016.[15] The doctor noted moderately severe arthritis with a history of slipped capital femoral epiphysis which was pinned. Daily severe pain was treated with Mersyndol and Naprosyn. Surgery was discussed at that time.
[15] Insurer’s bundle, page 142.
The left total his replacement was performed by Dr Graham on 8 April 2016.[16] The hospital records show discharge on 26 April 2016 on various medications including Targin and Endone.[17]
[16] Insurer’s bundle, page 140.
[17] Insurer’s bundle, page 111.
The X-ray of the left hip dated 23 May 2016 showed unaltered appearance since April 2016 with no periprosthetic complication or evidence of component failure.[18] Dr Graham then noted that the claimant was doing well six weeks post operation and the left hip was pain free to gentle range of motion.[19]
[18] Insurer’s bundle, page 117.
[19] Insurer’s bundle, page 139.
On 1 August 2016 Dr Edward Graham noted ongoing discomfort in the groin[20] with limitation of strength which had improved with the return of physiotherapy. Tightness was noted anteriorly which Dr Graham believed related to the tight anterior structures.[21] On examination the left hip was pain free to gentle range of motion.
[20] The Panel reads the reference to groin as left groin as the report is only concerned with the left side and the post-surgical sequelae.
[21] Insurer’s bundle, page 138.
Dr Magdy Maximos, general practitioner provided a report dated 9 February 2020[22] commenting on the pre-accident notes. Dr Maximos noted that over the years prior to the left hip replacement in April 2016, Ms Kolyvas had daily back and hip pains with limping and muscle spasm requiring pain control medications. Following surgery, the claimant was discharged from hospital on medications including Targin, Endone and Lyrica. Mersyndol forte and endone were prescribed from May 2016 due to “rehabilitation”.
[22] Claimant’s bundle, page 91.
Dr Maximos noted that the clinical note on 24 August 2016 referring to left groin pain and the referral for ultrasound on 27 September 2016 for right hip pain. He stated that the clinical note on 24 August 2016 referring to the left was “incorrect” stating:[23]
“It is important to note that Karen NEVER complained of LEFT groin/tendons pain and/or limping prior [to] the MVA since the Hip replacement.”
[23] Claimant’s bundle, page 92.
Dr Maximos noted that the motor accident caused extensive bruising, whiplash neck injury, tenderness and bruising across the pelvis from the seat belt. Further, the recovery from the hip operation was halted and the condition worsened in the weeks and months following the motor accident.
Initial medical treatment following the motor accident
The clinical records from Dr Maximos for the period following the motor accident record are:[24]
[24] Insurer’s bundle, page 80.
“7 October 2016 MVA on 6 October 2016
Go this on driver’s side by a truck who went through a red light.
No LOC
No Head injury
Sustained bruises right forearm
Sore right side of neck and shoulder
Some bruising right side of lower abd – hip area.
12 October 2016 Bruising over right side of hip area
Feeling more pain R shoulder – neck.
17 October 2016 Still in pain over C Spine, down shoulder and R M.L.
20 October 2016 Still having pain on back neck R shoulder
Complained of pain in left groin on flexion, extension
Referral for U/S
RTW plan
25 October 2016 Mersyndol forte
26 October 2016 NAD
Ref for MRI”
Dr Maximos provided a report dated 4 February 2018 noting whiplash neck injury, left shoulder and left groin since the motor accident.[25] Due to the severity of the ongoing symptoms, Dr Maximos sought approval for referral to Dr Cunningham.
[25] Claimant’s bundle, page 45.
Dr Maximos provided a further report dated 25 March 2018.[26] The doctor noted that the claimant’s presentation on 7 October 2016 was of pain worse on the right side of the neck and right shoulder, bruises on the right forearm and lower abdomen and around both hips. Examination noted recent bruising on the right forearm, right side of the lower abdomen and tenderness on or around the left hip area. During ongoing almost weekly consultations,
Ms Kolyvas reported neck, right shoulder and upper limb pain as well as left groin and hip pain.[26] Claimant’s bundle, page 46.
Dr Maximos stated that Ms Kolyvas was progressing very well with rehabilitation following the April 2016 operation and was not complaining of any left hip pain. However, ongoing pain in the left hip and groin following the motor accident meant that the condition had become quite incapacitating with Ms Kolyvas becoming dependent on pain killers.
Radiology
The CT scan of the cervical spine dated 19 October 2016 reported constant neck pain going down the right shoulder and right arm. Discovertebral degenerative changes noted from C3/4 to C6/7 with severe osteophyte complex at C5/6 and C6/7.[27]
[27] Insurer’s bundle, page 119.
An ultrasound of the left groin dated 25 October 2016 noted the motor accident two weeks previously. No cause for the symptoms was identified on the scan.[28]
[28] Insurer’s bundle, page 121.
An MRI of the left groin dated 1 November 2016 showed no definite cause for the ongoing symptoms.[29]
[29] Insurer’s bundle, page 125.
A CT scan of the pelvis and left thigh dated 30 June 2017 did not identify a cause for the ongoing left hip symptoms.[30]
[30] Insurer’s bundle, page 122.
An ultrasound of the right groin dated 5 July 2017 noted persistent pain near the abductor insertion following previous hip arthroplasty. No identifiable cause of the pain was shown by the study.[31]
[31] Insurer’s bundle, page 124.
An ultrasound guided injection into the left hip was performed on 14 July 2017.[32]
[32] Insurer’s bundle, page 161.
A regional bone scan and Spect dated 8 October 2018 showed satisfactory appearance of the left hip prosthesis.[33]
[33] Insurer’s bundle, page 178.
MRI of the cervical spine dated 13 February 2020 showed possible impingement of the C5 and C7 nerve roots.[34]
[34] Claimant’s bundle, page 80.
Statement
An email from Ms Kolyvas dated 16 November 2017 stated that she sustained a “whiplash injury, shoulder pain and groin injury/pain post car accident”[35] with the most debilitating being in the groin area on the left side. Ms Kolyvas noted that pilates commenced 10 weeks post left hip replacement and she was “going every week with improving mobility and flexibility”.
[35] Insurer’s bundle, page 129.
Treating opinions
Dr Edward Graham
Dr Edward Graham, surgeon provided a report dated 10 August 2017 noting the development of whiplash and left hip pain following the motor accident.[36] The doctor noted that he last saw Ms Kolyvas in August 2016 when “she was recovering well”. The main concern in August 2017 was left anterior groin pain and greater trochanteric pain.
[36] Insurer’s bundle, page 115.
In a report dated 30 August 2017 Dr Graham made a small correction to his report dated
10 August 2017 noting the tenderness was on the left side.[37] MRI scan was reviewed showing bilateral insertional tendinosis of the abductor longus and a small tear of the left abductor longus and thickening of the left rectus abdominus tendon. Ongoing non-operative treatment was recommended.[37] Insurer’s bundle, page 114.
Dr Corey Cunningham
Dr Corey Cunningham, physician reviewed Ms Kolyvas on 14 May 2018 regarding ongoing left hip/groin pain.[38] The doctor noted the motor accident when Ms Kolyvas experienced neck, shoulder, pelvis and hip injuries. Dr Cunningham opined that the cause of the ongoing pain was uncertain but appeared to relate to the hip more than the pubic symphysis suggesting possible iliopsoas bursitis/impingement. Further scans and trial of Lyrica were recommended.
[38] Insurer’s bundle, page 131.
The X-ray and MRI scan of the left hip dated 18 May 2018 showed no evidence of iliopsoas tendinopathy/bursitis with low grade pubic symphyseal degenerative wear. No neural impingement was demonstrated from the lumbar spine.[39]
[39] Insurer’s bundle, page 132.
Dr Cunningham described the MRI scan as identifying mild abductor tendinopathy but was otherwise unremarkable and recommended review by a further hip surgeon.[40]
[40] Insurer’s bundle, page 133.
Dr Sunny Randhawa
Dr Sunny Randhawa, surgeon provided a report dated 27 August 2018 noting a history of good recovery from a left total hip replacement performed in early 2016.[41] The following days after the motor accident the claimant “started to get increasing pain to the anterior and medial aspects of the left hip” which continued to worsen and become debilitating.
[41] Insurer's bundle, page 104.
Dr Randhawa observed that the lateral views of the May 2018 X-ray show acetabular component is proud by approximately 1 cm from the anterior rim. The doctor opined that trauma of the car accident has caused the “psoas tendon to go into spasm and tighten, thus impinging on the acetabular component”.
Left hip revision surgery was undertaken by Dr Randhawa on 26 November 2018. Findings at surgery included “tight psoas tendon impinging on acetabular component anteriorly”.[42]
[42] Insurer’s bundle, page 180.
On 19 March 2019 Dr Randhawa noted Ms Kolyvas was three months post revision with a great recovery and full resolution of hip pain. The doctor noted symptoms of anterior hip flexor muscle injury suffered in the immediate post-operative period at the hospital with ongoing concerns of allodynia and paraesthesia to the left lateral thigh.
Dr Samuel Kim
Dr Samuel Kim, neurologist, provided a report dated 10 May 2019.[43] He opined that the left anterior and lateral thigh sensory disturbance was consistent with meralgia parasthetica consistent with a stretching type of injury with likely resolution of symptoms.
[43] Insurer’s bundle, page 101.
On 7 June 2019 Dr Kim noted the medial and lateral thigh SSEPs were within normal limits.[44] The doctor noted the claimant had developed lower back pain radiating to the right buttock suggestive of radiculopathy. An MRI scan for the lumbar spine was arranged.
Qualified opinions
[44] Insurer’s bundle, page 103.
Dr Frank Machart, orthopaedic surgeon, provided a report dated 27 August 2018.[45] The doctor noted the motor accident caused bruising around the pelvis and chest from the seat belt and neck pain particularly on the right. Prior history included hip replacement in April 2016 with a good recovery and no pain. Post motor accident there was persistent pain in the left hip.
[45] Insurer’s bundle, page 32.
Dr Machart diagnosed cervical musculoligamentous injury and unexplained left hip pain. He opined that further treatment for the neck pain was unnecessary with symptoms gradually diminishing over the next 12 months.
Dr Machart provided a supplementary report dated 9 July 2019[46] commenting on any causal nexus between the motor accident and the psoas tendon going into spasm and impinging on the acetabular component. The doctor stated:[47]
“I did not have contemporaneous evidence of MVA causing psoas spasm and cause impingement on acetabular component. The impact of the MVA could have caused temporary spasm, which would have lasted no more than 3 or 4 days, therefore have no impact on the existing THR. The revision THR is recommended for impingement on soft tissues from proud acetabular component. It is more likely that the alleged psoas spasm is caused by impingement by acetabular component on soft tissue, not uncommon given the pathology of mispositioned acetabular component, and not as a result of the MVA. Psoas spasm was not typical pathology for this type of injury, given the mechanism of the MVA.
….
The more likely explanation is that the protruding edge of the acetabular component is causing rubbing on soft tissues, that would have been evident irrespective of the MVA.”
[46] Insurer’s bundle, page 39.
[47] Insurer’s bundle, page 40.
Dr Machart provided a further report dated 17 September 2019.[48] The doctor noted revision hip replacement was undertaken in December 2018 which resolved the intrinsic hip pain but left the claimant with hyperaesthesia and numbness. He noted that the left leg discrepancy was probably caused by the first hip replacement rather than the revision surgery as a “repositioned acetabulum would not be expected to cause leg length discrepancy”.
[48] Insurer’s bundle, page 42.
Dr Machart opined that the leg length discrepancy had the potential to have aggravated the lumbar spine condition.
In respect of diagnosis of the left hip, Dr Machart stated:[49]
“Earlier I was not of the opinion that there was injury to the soft tissues and psoas muscle. It is conceivable that swelling within the soft tissues may have caused impingement on the existing edge of acetabulum which then led to persistent irritation requiring revision replacement, okay now after revision, complicated by neuralgia.”
[49] Insurer’s bundle, page 47.
Dr Machart did not accept that second weekly osteopathy and physiotherapy was necessary as “evidence-based medicine is not in support of [a] scenario of endless structured management of this nature for the purposes of the pathology treatment that is before me”.
Dr Machart accepted that gratuitous care was required for a couple of months after injury and after the revision surgery.
Dr Machart provided a further report dated 17 February 2020[50] described as a file review based on further records including those provided by Dr Maximos. The doctor noted that based on Dr Maximos records there were “symptoms in the left hip requiring prescription analgesics up to the time of the MVA” and that there was “delay in recorded symptoms in the left hip post MVA”. Dr Machart opined:[51]
“The reason the left THR was performed was because there was impingement from mispositioned acetabular cap on anterior soft tissue structures. This is a recognised complication of THR. The malposition of the THR was not caused by the MVA. There was no pathology in the MVA which contributed to impingement. I cannot see a connection between the MVA and reasons for the surgery, which was soft tissues rubbing on the anterior lip of the acetabular component. These symptoms were present before the MVA, were present post the MVA and increased gradually after the MVA without substantial injury documented at the time of the MVA. I see no connection between the MVA from the point of view of documentation, from the point of view of symptoms pre-or/and post MVA, and from the point of view of mechanism of injury.”
[50] Insurer’s bundle, page 50.
[51] Insurer’s bundle, page 53.
Dr Machart accepted that the motor accident caused injury to the cervical spine “leading to resolution of symptoms, not clear exactly when”. The doctor did not accept that there was injury to the lumbar spine and the symptoms associated with the revision of the left hip replacement were otherwise not related to the motor accident.
Dr Machart provided a further report dated 21 October 2020.[52] Ongoing symptoms included altered sensation and hypersensitivity over the left thigh distal to the hip and pain in the left hip. Dr Machart opined that bilateral arm symptoms were of recent onset unrelated to the motor accident and that the right hip pain was unrelated to the motor accident.
[52] Insurer’s bundle, page 56.
Dr James Bodel
Dr James Bodel, orthopaedic surgeon provided an initial report dated 25 October 2019.[53] The doctor noted a history of onset of neck and low back pain following the motor accident and left hip pain over the next few weeks. The doctor diagnosed whiplash injury to the neck, a musculoligamentous injury to the low back and disturbance of the total hip replacement requiring revision surgery.
[53] Claimant’s bundle, page 33.
Dr Bodel provided a further report dated 26 March 2020 noting that the motor accident insurer had disputed liability for the revision surgery of the left hip.[54] The doctor opined that the “motor vehicle accident may have caused psoas spasm which had not been present following the original total hip replacement and that has also contributed to the need for the revision surgery”.[55]
[54] Claimant’s bundle, page 42.
[55] Claimant’s bundle, page 43.
Dr Robert Breit
Dr Breit, orthopaedic surgeon, was qualified by the workers compensation insurer and provided a report dated 2 April 2020. The doctor noted a history of initial neck and shoulder pain with bruising from the safety belt on the chest and abdomen. Severe left hip pain developed about two weeks after the motor accident.
Dr Breit diagnosed left hip pain due to post-traumatic soft tissue impingement.
Dr Breit provided a further report dated 22 October 2020 which included review of various documentation including the clinical records of Famcare Medical Practice. In respect of diagnosis, Dr Breit stated:
“He [Dr Bodel] claims that should be the case because the injury has caused ‘disruption that required revision’. There has been no disruption. There is no evidence for that contention and the problem was mal positioning of the acetabular component by the original surgeon. The subsequent trauma from the seatbelt resulted in irritation that proved refractory. Dr Randhawa had to remove a solidly fixed component in order to revise the position.” (emphasis in original)
Other treatment
Ms Cochrane, physiotherapist provided a report dated 3 October 2017 for treatment of the left groin pain. The physiotherapist diagnosed adductor longus and rectus abdominus tendinopathy which she felt was not acutely as a result of the motor accident.[56]
[56] Insurer’s bundle, page 118.
Physiotherapy commenced on 7 January 2019 following the revision surgery. The physiotherapist noted that there was weakness in the hip flexors and abductors, but previous pain had resolved.[57]
[57] Insurer’s bundle, page 210.
The article
The authors noted that anterior iliopsoas impingement and tendinitis is poorly understood and an underrecognized cause of groin pain after a total hip replacement, occurring in one study, in 4.3% of patients. Pain resulting from anterior iliopsoas impingement and tendinitis may be related to a prominent or malpositioned acetabular component. Groin symptoms occur between 1 and 96 months following a primary or revision total hip replacement. The authors noted that most patients require surgical treatment to achieve successful resolution of symptoms.
SUBMISSIONS
At the outset we observe that this is a new assessment. There are submissions directed to persuading the President’s delegate[58] that there was error in the previous assessment or in otherwise seeking a further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
[58] Or the relevant predecessor.
Claimant’s submissions dated 19 February 2020
The claimant submitted there is ample contemporaneous evidence that she had undergone a successful total hip replacement in April 2016 referring to the multidisciplinary discharge letter dated 25 April 2016 and return to work in May 2016. By May 2016 most of her pain medication had ceased although this continued to assist in the return to exercises and pilates. When seen by Dr Graham in August 2016 the claimant was reported as recovering well.
The reference to left groin pain in the clinical notes of the general practitioner on
24 August 2016 is an error of transposition and should refer to right groin. Limited reliance should be placed on statements recorded by doctors in medical histories.The motor accident involved the claimant’s vehicle being hit by a large van or truck which was travelling through a red light. The airbags were deployed. Although the insured’s speed is unknown, it would be inferred that the vehicle was travelling with some velocity. The claimant suffered injuries to various parts of the body including bruising to the pelvis.
There is ample contemporaneous evidence following the accident that the left hip had deteriorated including Dr Maximos’ clinical notes, the left groin ultrasound on
25 October 2016 and MRI scan on 1 November 2016, physiotherapy treatment and various specialist attendances (Dr Cunningham, Dr Graham and Dr Randhawa).
Dr Randhawa’s opinion that the motor accident caused the psoas tendon to go into spasm and impinge the acetabular component is borne out by the operative findings.
Dr Machart does not explain why the motor accident would have only caused a temporary spasm of three or four days. The doctor was not provided with the operative report which showed that there was removal of the femoral head. This lends support to this procedure causing the leg length discrepancy and aggravating the lumbar spine condition. In Dr Machart’s third report he makes the significant concession that swelling within the soft tissues may have caused impingement on the existing edge of the acetabulum.
Dr Randhawa places weight on the onset of symptoms dating from two weeks following the motor accident. Even if there was both misalignment and contribution from the motor accident, then causation was established.
Claimant’s submissions dated 20 December 2021
The claimant referred to the “significant forces” brought to bear on the claimant in the motor accident. It was not her assertion that there was “complete recovery from the first hip replacement”.[59]
[59] Claimant’s bundle, page 29.
The first documented report of left groin pain is on 20 October 2016 and is consistent with the views of Dr Randhawa that the trauma from the motor accident caused the psoas tendon to go into spasm and tighten leading to impingement of the acetabular component. She submitted that there was ample contemporaneous support from the treating doctors on the issue of causation.
In relation to pre-existing deduction, it was submitted that the Assessor found a 10% pre-existing impairment and ascribed a 5% impairment to the motor accident.
The finding of bursitis, notwithstanding the ultrasound, was based upon the findings of the Medical Assessor.
Claimant’s submissions dated 17 March 2022
The physiotherapy and osteopathic treating notes provide further contemporaneous complaint of left hip and groin symptoms. The physiotherapy records on 6 December 2016 refer to a development of groin pain following the motor accident and further attendances refer to sensitive left psoas. The first attendance with the osteopath on 2 November 2016 refers to an inability to “lift leg and flex at hip”. Subsequent attendances refer to these issues specifically to psoas pain on palpitation.
Insurer’s submissions dated 14 January 2020[60]
[60] Insurer’s bundle, page 26.
The insurer disputed that the claimant had recovered from the left hip replacement procedure prior to the motor accident and referred to the clinical notes produced by Famcare Medical Practice. It referred to Endone and Mersyndol Forte being prescribed on a number of occasions, the clinical note on 24 August 2016 referring to left groin pain and the note on
27 September 2016 referring to right hip pain. It queried whether the reference to right hip should be “left” hip.The insurer referred to the clinical records following the motor accident which initially refer to bruising on the right forearm and pain on the right side of the neck and shoulder and bruising on the right side of the lower abdomen. The first clinical note after the motor accident referring to a complaint in the left groin was on 20 October 2016. The claimant was referred for an ultrasound at that time.
The insurer submitted that the claimant complained of left groin pain in August 2016, was regularly on Endone and the incorrect history had misled those who had assessed her. It relied on the opinion by Dr Machart that the motor accident did not cause any pathology in the left hip and there was no objective basis that the motor accident caused the “hypothetical psoas spasm”.
The insurer denied injury to the hip and denied that the injury gave rise to the need for revision of the left hip replacement. Accordingly, there was no allowance for the scar consequent upon the revision surgery.
The insurer submitted that the pre-accident records show complaints of back pain for many years such as on 4 June 2005, 19 July 2006, 6 March 2007 with radiation to the left foot and referral for a CT scan on 13 May 2011 and 27 November 2013.
On 15 August 2019 Dr Machart did not record any complaint of back pain.
The claim form completed by the claimant on 2 August 2017 does not refer to injury to the back and the medical certificate provided by Dr Maximos dated 2 August 2017 does not include any reference to the back. There is also no reference to the back in the report from Dr Maximos to QBE dated 25 March 2018, in the reports of Dr Cunningham, Dr Graham and Dr Randhawa.
In a report dated 17 September 2019 Dr Machart noted a six-month history of back pain which was due to leg length discrepancy as a product of the initial hip replacement. Further, any accident-related impairment would need to be “off-set” by a reduction to account for the pre-existing symptoms.
The clinical notes of Dr Maximos include various entries to back pain and leg symptoms in 2019 and Dr Kim, in a report dated 7 June 2019 refers to the claimant developing low back pain which radiated to the buttocks.
The insurer submitted that the claimant did not sustain a low back injury in the motor accident and if it was considered consequent to the hip replacement issues, then it was not, for the submissions articulated previously, related to the motor accident.
The insurer submitted that the claimant had a long history of neck symptoms which were referenced in the clinical notes on 20 August 2008, 15 December 2011 and 15 May 2015. On 17 November 2015 the note refers to constant neck pain with pins and needles in both hands and referral for a CT scan.
The insurer accepts that the claimant suffered a neck injury with short-term consequences and no need for future treatment.
Insurer’s submissions dated 17 January 2020[61]
[61] Insurer’s bundle, page 243,
The insurer denied it was liable for the cost of the revision of the left hip replacement and all related consultations and treatments based on its previous submissions on causation. It otherwise denied liability for expenses for future treatment “from or traceable to the left hip”.
In relation to future medications, general practitioner consultations, investigations, physiotherapy and scans, the insurer referred to the pre-accident frequency and duration of such treatments.
Insurer’s submissions dated 15 November 2021[62]
[62] Insurer’s bundle, page 18.
Theses submissions were filed seeking a review of the replacement certificate issued by Medical Assessor Dixon.
The insurer referred to the opinion of Dr Machart dated 21 October 2020 that the revision hip surgery was performed because of an impingement from the mal-positioned acetabular cap on anterior soft tissue structures which was a recognised complication of a total hip replacement. This had no connection with the motor accident. The Medical Assessor did not address this contrary opinion by stating that the accident was severe, and the claimant sustained a soft tissue seat belt injury.
The Medical Assessor did not consider causation and did not turn his mind to the persistence of left hip symptoms prior to the motor accident. This is evidenced by the clinical records which refer to ongoing pain and prescription of pain medication (Endone) in the period following the first hip surgery until the motor accident.
Further, there was a delay in the onset of complaints of left hip pain following the motor accident. For these reasons the most likely explanation for left groin symptoms was the protruding edge of the acetabular component rubbing the soft tissues in the joint.
In relation to assessment the claimant had previously undergone a left hip replacement which, at best, would have been assessed at 15% impairment. Accordingly, the deduction should have been the entire 15% rather than two-thirds. The application of “two-thirds” was not in accordance with the Guidelines.
The insurer submitted that there was no scan evidence of bursitis referring to the ultrasound of the left groin and dated 25 October 2016 and the X-ray and MRI scan of the left hip dated 18 May 2018.
RE-EXAMINATION
The Panel determined that Ms Kolyvas would be examined by both Medical Assessors. The joint examination report is as follows:
“The medical assessment was carried out by Medical Assessors Stubbs and Moloney at the PIC rooms on 22 July. Due to recent covert exposure assessor Moloney necessarily attended by teleconference.
History: Ms Kolyvas is 52-year-old. She was formerly employed at the Sydney Cardiology Clinic as a manager which involved a lot of travelling. More recently she has moved to work as practice manager with a urological oncology practice. She was involved in a motor vehicle accident six months after a total hip replacement.
She suffered from a slipped capital femoral epiphysis (SCFE) of the left hip as a 10-year-old and underwent pinning in situ by Dr Don Whiteway at Westmead Children’s Hospital. At the same time a prophylactic pinning was performed of the right hip. SCFE is often bilateral and prophylactic pinning prevents the opposite hip from suffering a slip and thus avoids the problems associated with deformity and growth disturbance. The pins/screws were removed from both hips a couple of years later. If left in situ the pins/screws may be extremely difficult to remove a later time. Long-term follow-up of SCFE indicates that residual deformity and growth disturbance will lead to osteoarthritis in the early 40s. Ms Kolyvas underwent a left total hip replacement by Dr Graham in April 2016 about six months prior to her motor vehicle accident. She has a very typical history for this condition.
Prior to the surgery she suffered from groin pain and stiffness. She was taking opiate analgesics. These medications were initiated by an unrelated right costo-chondral injuries some years before. At first the surgery seemed successful, but she was unable reduce the analgesic medications which is unusual since most people can be off opiate medications within a couple of weeks of the hip replacement. She was also unable to fully flex the prosthetic hip, again an unusual circumstance. She was back at work.
The accident occurred on 6 October 2016 on the M2. She was starting a left hand turn on the green in her 5 door Hyundi SUV. A car crossing on the red struck her vehicle on the right side, the car was written off. All the airbags deployed. She was taken to the Macquarie Hospital, where Sydney Cardiology Clinic doctors attend, but she was not hospitalised. There was neck pain and numbness immediately and subsequent low back pain. She attended an osteopath. About 2 weeks after the accident, she began to experience further left groin pain. This was different in character to the groin pain she had prior to her surgery. This pain spread down the inner thigh the distribution of the hip adductor muscles whereas the groin pain of the arthritis was localised, and the total hip replacement relieved this pain. Miss Kolyvas’ attention was drawn to her local doctor’s reports at this time of the pain being on the right side. Ms Kolyvas explained that the pain was always on the left side and that Dr Maximos’ explanation; this was probably a typo was, in her view, correct. Physiotherapy notes also only show pain markings on the left side. Various investigations were performed including ultrasonography and MRI of the hip and abductor muscles with findings of some pathological changes in these. The expectation was that the problem would resolve in time. It did not; it worsened.
She was referred for a further opinion to Dr Randhawa another orthopaedic surgeon. He believed the cause was entrapment/impingement of the iliopsoas tendon because of anterior protrusion of the acetabular component of the hip replacement. A revision hip replacement was performed at the Sydney Adventist Hospital in November 2018. This has restored full hip flexion and relieved the adductor pain. There is a residual problem of burning and numbness on the upper lateral thigh but otherwise the new hip replacement is very satisfactory.
The need for prolonged opiate pain relief after the first surgery was put to Ms Kolyvas. As noted, this was initiated by unrelated injury and Ms Kolyvas believes she had become dependent on the medication and is planning cognitive behaviour therapy at St John of God Hospital Richmond to deal with her habituation. She understands long-term opiate use can lead to a lessened pain tolerance.
The present situation is this: she now has a limp and burning pain in the outer thigh but has regained excellent mobility about her left hip. There is residual discomfort in the neck and the back which tends to increase through the day. She sleeps poorly but is pleased with a new job since this avoids travel.
Clinical examination:
Ms Kolyvas gave a straightforward history and was fully consistent and cooperative in the clinical examination. She is 173 cm tall and 88 kg in weight. She was examined with her legs bear. She can tip toe and heel toe walk. She has a short-legged limp and a positive Trendelenburg test. She has a notable pelvic tilt to the left when standing. This can be abolished by a 26 mm raise under the left foot. Differential femur – tibial length is assessed with the knees flexed on the heels level. All the shortening is in the femur. There are two scars on the outside of the left hip. A 10 cm vertical scar over the greater trochanter anteriorly consistent with a minimally invasive approach for the first hip replacement.
The revision hip replacement has an extended posterior approach about 1 cm posterior to the original surgery of 27 cm in length. The scar is broad, unsightly, and somewhat raised. It would be obvious in swimming trunks at the beach but not in normal streetwear. Neither scar requires local treatment. She has a slight Trendelenburg lurch when walking which seems to be a mix of abductor weakness and a short left leg. She can dress and undress himself and climb on to the examination couch unaided.
Cervical spine:
There is normal head posture but some tenderness in the right trapezius and right-sided cervical musculature. Range of motion is three quarters normal in all directions, there is no asymmetry. There is no spasm or guarding in the cervical musculature. Neurological examination of the upper limbs is normal.
Movements of the upper limb joints are full and there is no weakness or muscle wasting and no sensory loss or reflex changes.
Lumbar spine as good movement but with some discomfort on active extension and mild tenderness on both sides in the paraspinal musculature. Straight leg raising and knee extension do not evoke any nerve root tension signs and the reflexes are brisk and symmetrical. There is some residual wasting in the left thigh and calf which would be expected because of firstly, the arthritis, then the surgery and finally a short leg.
There is sensory loss in the distribution lateral cutaneous nerve of the thigh, but no paraesthesia can be provoked by palpation of the nerve along its course. There is no other sensory disturbance. There is only 4/5 hip abduction strength. Hip movement is generally excellent. Hip flexion is to 130° on the left compared to 140° on the right, the problem of lack of hip flexion following the original surgery has been corrected. The left hip extends fully when Thomas’s test is performed and equally well abduction and flexion when the second of Thomas’s test is performed. Hip abduction in extension is limited to 20°. Adduction 30° External rotation is excellent but internal rotation is limited 15°. The other lower limb joints were normal.
Imaging studies:
Ms Kolyvas has had many x-rays performed. Three x-rays viewed by the Medical Assessors need specific comment.
The left hip before surgery – the AP is not properly centred; the pelvic inlet is symmetrical probably reflecting some hip flexion contracture. There is a good frog lateral view of the hip. This shows typical features of SCFE. The femoral neck is short in part from damage to the epiphysis from the slip and in part desirable premature fusion of the epiphysis as part of the stabilisation. The femoral head has a typical deformity. It is no longer spherical it is mushroom shaped and tilted posteriorly on the femoral neck. The femoral head is flat and wide (Coxa Magna) and the acetabulum broad and very shallow. Acetabular orientation difficult to assess as the AP is not properly centred.
The left hip after the first surgery, centred AP view. The acetabular component of the hip replacement is metal backed and secured by two screws which are malpositioned. The natural acetabular orientation outwards at 40° and forward inclination (anteversion) about 25°. The acetabular component of total hip replacement attempts to replicate this. The component is either a radiopaque ring around the margin or the metal outer shell acts the same way. The acetabulum will therefore appear as a narrow oval on a truly centred AP film, calculation of the long/short diameters ratio allows calculation sin of the angle of orientation. The oval is very narrow, the ratio is 1:8, the acetabulum is relatively retroverted, about 5° anteversion and anterior margin of the acetabular component stands well proud of the natural anterior acetabular margins. Both block flexion and draw the iliopsoas tendon over the sharp edge of the acetabular component. Further the remaining medial bone after reaming of the natural acetabular medial wall is still thick. The acetabular component is mispositioned in direction and the acetabulum is not reamed deeply enough to fully except the hemispherical component.
The accompanying article from the Journal of American Academy of Orthopaedic Surgeons describes the problem of iliopsoas impingement on the prosthetic acetabulum and the treatment.
The left hip after the second surgery. The femoral component is unchanged. The metal backed acetabular component is much more deeply seated in the natural acetabular. The ratio of the long and short diameters is about 1: 2.75, about 25°. The acetabular component no longer sits proud.
Hip replacement outcomes are assessed according to table 65 of AMA 4 following a slightly modified version of the assessment scores from the Hospital for Special Surgery. Ms Kolyvas was assessed as having an excellent outcome for the original hip placement, a 15% WPI. The revision surgery is at least as good and probably better than the surgery performed in April 2016.
Long-term results replacement various prosthetic combinations can be assessed using the Australian Orthopaedic Association National Joint Registry. The highbred fixation prosthesis used for Ms Kolyvas has a 6% revision rate on 15 year follow up. There is no reason to believe the second surgery has compromised this nor that further surgery will be more likely because the revision surgery has been undertaken. Long-term outcome of the revision surgery has not increased any future treatment needs above those anticipated for the primary hip replacement performed in April 2016. Indeed, given the benefits from the revision surgery, future medical needs have lessened.
Her leg length inequality is due to several factors. Firstly, SCFE cause a shortening by prematurely stopping proximal femoral growth in combination with deformity. Shortening acquired in childhood is well-tolerated. Ms Kolyvas may not have been aware of it. Anticipated shortening from this would be about 1.5 cm. The first hip replacement probably lengthened the leg as the centre of rotation of prosthetic hip displaced outwards and downwards from the acetabular malposition, but the effect would be small. The second hip replacement moved the centre of rotation upwards and inwards shortening the leg by (probably) a further 1 cm giving the measured shortening of 2.6 cm. Sudden changes in leg length in adults improve joint mobility but are otherwise poorly tolerated. A heel raise of two cm to level the pelvis when walking and obviate the need compensating by tilting the trunk in the low back may abolish or at least alleviate the present limp.
Table 35 AMA4 (page 75) rates the leg length discrepancy between 2 and 2.9 cm as equating to a 3% WPI. As noted above some of the leg length discrepancy is from the SCFE.
There has been an injury to the lateral cutaneous nerve of the thigh following the revision surgery. Compression neuropathies of this nerve occur spontaneously as the nerve passes through a narrow canal lateral to the anterior superior iliac spine below ligament. It is a known complication of hip replacement especially if a flexion contracture has been corrected. Ms Kolyvas has numbness and some burning sensation, but the Panel could not provoke dysesthesia in the clinical examination. The condition though is part of her impairment. Table 68, AMA4 page 89 gives a 1% WPI for sensory loss or a 2% WPI for dysesthesia. The Panel does not believe they can be combined.
Ms Kolyvas has been assessed as having a 3% WPI for the presence of chronic trochanteric bursitis. Table 64 (page 85) requires this to be chronic in nature and accompanied by an abnormal gait. The Panel did not find evidence of active inflammation in the bursa. This has certainly been scarred as it is in the direct approach for hip replacement. The hip abduction strength was surprisingly good at 4/5 given all the preceding events. We do not believe that the limp is due to trochanteric bursitis. There are more obvious causes for the limp such as the difference in leg length.
Scarring: the revision scar is long, broad, red, locatable and raised and Ms Kolyvas is conscious of it. It would not normally be on view with normal clothing and does not require treatment or interfere with her ADL. TEMSKI table 6.81, 2% WPI.
Impairment assessment:
Hip replacement – the second hip replacement is better than the first. There is an assessable pre-existing impairment. The equation becomes 15% -15% equals 0% WPI.
Trochanteric bursitis – not found - no assessable impairment.
Lateral cutaneous nerve of the thigh – 2% WPI for dysesthesia.
Scarring – 2% per TEMSKI.
Low back pain – Leg length equalisation by a heel raise is likely to reduce the low back pain significantly. In any case the assessment is DRE category I.
Cervical spine – due to the motor vehicle accident. DRE I – 0% WPI based on our findings and tables 7 and 8 of the Guidelines.
Future treatment needs – all future treatment including revision surgery are due to the underlying condition and the original hip replacement. The revision surgery does not change these requirements.”
REASONS
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 decisions 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[63] and Insurance Australia Ltd v Marsh.[64]
[63] [2021] NSWCA 287 at [40], [41] and [45].
[64] [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[65] 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.
[65] [2021] NSWSC 548 (Norrington).
The Court stated:[66]
“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).”
[66] Norrington at [31].
We observe that there is an absence of immediate complaint of left groin/hip pain following the motor accident. However, the claimant gave a history to the Medical Assessors at the examination, repeated in histories provided to other doctors, that the left groin pain did not commence until approximately 14 days after the motor accident. Accordingly, there is no issue that the initial notes do not reflect an assertion that there was immediately left groin pain following the motor accident.
Injury
Cervical spine injury
There is no dispute that the claimant sustained a cervical spine injury in the motor accident.
The claimant has made consistent complaints of ongoing neck pain following the motor accident. We reject the insurer’s submission that here has been a recovery from the motor accident of the cervical spine condition at some unspecified time.
Ms Kolyvas does not satisfy DRE category II for the reasons outlined in the examination report. However, that does not mean that there are no ongoing symptoms. We accept that there is restriction of movement in the cervical spine caused by the motor accident although it is not assessed as asymmetrical to satisfy DRE Category II. There were no other symptoms of the cervical spine to satisfy a condition required for DRE Category II.
Left hip
The Panel refers to the findings of the review of the X-rays taken after the total hip replacement in April 2016. The Medical Assessors stated in relation to the post-surgery but pre-motor accident X-ray:
“The acetabular component of the hip replacement is metal backed and secured by two screws which are malpositioned. The natural acetabular orientation outwards at 40° and forward inclination (anteversion) about 25°. The acetabular component of total hip replacement attempts to replicate this. The component is either a radiopaque ring around the margin or the metal outer shell acts the same way. The acetabulum will therefore appear as a narrow oval on a truly centred AP film, calculation of the long/short diameters ratio allows calculation sin of the angle of orientation. The oval is very narrow, the ratio is 1:8, the acetabulum is relatively retroverted, about 5° anteversion and anterior margin of the acetabular component stands well proud of the natural anterior acetabular margins. Both block flexion and draw the iliopsoas tendon over the sharp edge of the acetabular component. Further the remaining medial bone after reaming of the natural acetabular medial wall is still thick. The acetabular component is mispositioned in direction and the acetabulum is not reamed deeply enough to fully accept the hemispherical component.”
Having reviewed the pre-motor accident X-rays there is at least 1 cm of sharp edge metal shell under the iliopsoas tendon.
As we previously noted, a malpositioned acetabular cup can cause symptoms of impingement ranging between 1 and 96 months after a hip replacement.
We accept that the claimant suffered bruising on the right side of the hip/pelvis probably due to the sash component of the seat belt. This is not trauma to the left side and cannot explain injury to the left hip.
There is no contemporaneous recorded history of left sided hip trauma following the motor accident. The clinical notes on 7 and 12 October 2016 specifically refer to right sided bruising of the lower abdomen and hip area.
The claimant stated that the onset of left groin pain occurred two weeks after the motor accident. This history is consistent with the note recorded by the general practitioner. This delay is onset of symptoms is too long to explain direct trauma to the prosthetic hip causing injury to the iliopsoas tendon to spasm and impinge on the acetabular cap.
From the examination findings of Dr Randhawa who performed the revision arthroplasty, there had been no loosening of the acetabular cup of the prosthetic hip. The findings on revision surgery included “tight psoas tendon impinging on acetabular component anteriorly”.[67] This is entirely consistent with the malpositioning of the acetabular cup as seen in the pre-accident X-rays and is otherwise expected because of the likelihood of impingement given the extent of the acetabular protrusion by 1 cm.
[67] Insurer’s bundle, page 180.
We appreciate that there are a number of medical opinions suggesting a causal relationship between the motor accident and the onset of left groin pain including the opinion of the treating surgeon who opined that the motor accident caused the “psoas tendon to go into spasm and tighten, thus impinging on the acetabular component”.[68]
[68] The psoas tendon is simply a shortened expression for iliopsoas tendon.
We accept that causation is established if the claimant showed a contribution to the development to the left groin pain despite there being other non-accident causes.
However, if the iliopsoas tendon went into spasm due to the motor accident, this would have occurred at the time of the trauma and not been delayed by two weeks. Spasm causing tightening of the tendon would cause immediate pain in the left groin. The claimant did not suffer from left groin for approximately 14 days after the motor accident.
Further, there was no contemporaneous complaint of trauma to the left hip and the trauma from the motor accident caused bruising to the right side.[69] We do not accept that trauma from the seat belt causing bruising on the right side would cause the left iliopsoas tendon to go into spasm.
[69] See [41] herein.
The natural progression of a malpositioning of the acetabular component is that, at some point, groin pain will develop which will gradually deteriorate and become debilitating. This is what happened to Ms Kolyvas as she progressively suffered a deteriorating left groin condition ultimately leading to the need for arthroplasty revision surgery. The consistent left groin treatment Ms Kolyvas had in the months following the motor accident is consistent with the development of the progressive debilitating condition caused by the condition from the original hip surgery.
The delayed onset of left groin symptoms following the motor accident means that the causal relationship between the motor accident and the iliopsoas tendon going into spasm and causing impingement is extremely unlikely particularly given the extent of the malpositioning of the acetabular component following the THR and the absence of direct trauma to the left hip. In that regard the Panel, having reached its own conclusion, agrees with the ultimate opinion expressed by Dr Machart[70] that there is no causal relationship between the development of the left groin pain, iliopsoas impingement and the motor accident.
[70] We are conscious that Dr Machart gave differing opinions and at one stage accepted a causal link.
For the reasons provided, we do not accept the contrary opinions expressed by Dr Bodel, Dr Maximos, Dr Randhawa and Dr Breit that there was a causal relationship between the development of left groin pain from impingement of the iliopsoas tendon and the motor accident.
We also observe that left groin pain was recorded by Dr Graham in early August 2017. The claimant stressed that the history recorded by Dr Maximos in the clinical notes of left groin pain in late August 2017 was wrong. Dr Maximos confirmed that error in a subsequent report. The parties did not refer to Dr Graham’s clinical findings of groin pain in early August 2017 despite the claimant referring to other findings made by Dr Graham in that report.
Our conclusion on causation is not dependent on Dr Graham’s note of left groin pain in early August 2017. However, the history recorded by Dr Graham is consistent with the very beginnings of iliopsoas impingement and tendinopathy from the malpositioning of the acetabular cup even if Ms Kolyvas did not notice the problem until two weeks after the motor accident.
For these reasons we are not satisfied that the motor accident contributed to the development of left groin pain from iliopsoas impingement and the subsequent need for the revision surgery.
Lumbar spine
There was no injury to the lumbar spine in the motor accident.
There is no reference to lumbar spine injury in the clinical notes of the general practitioner following the motor accident and the treatment received following the motor accident. The lumbar spine is not mentioned by various doctors who treated Ms Kolyvas over the two years following the motor accident such as Dr Cunningham and Dr Graham.
The back is not mentioned as an injury sustained in the motor accident in the claimant’s email dated 16 November 2017 when she refers to the injuries sustained in the motor accident.
In June 2019 Dr Kim mentioned that the claimant had developed lumbar pain.
Based on the absence of treatment and complaint in the various records histories and the claimant’s account of her injuries in her email, we reject Dr Bodel’s opinion that the lumbar spine was injured in the motor accident.
The claimant otherwise asserted that the low back was consequential to altered gait.[71]
[71] Letter dated 1 July 2019, Insurer’s bundle, page 247.
Whilst there is a history of back pain prior to the motor accident, we accept that the claimant probably exacerbated the lumbar spine following the revision surgery. This is because, for the reasons outlined earlier, the revision hip replacement shortened the left leg leading to an antalgic gait. The antalgic gait resulted in displacement away from the vertical and would impose increased forces in the spinal muscles in order to balance the spine. This, in turn causes force transmission across the spine segments and into the disc spaces particularly at the lower levels of the lumbar spine.
We accept that the altered gait caused low back pain. The claimant was assessed as DRE Category I based on the examination findings of the Medical Assessors. However, for the reasons given we are not satisfied that the revision hip surgery was causatively related to the motor accident. Accordingly, the lumbar spine condition resulting from the revision hip surgery is not causatively related to the motor accident.
Other assessments/injuries
Ms Kolyvas was assessed by the Medical Assessors for the consequences of the revision surgery such as the scar and the dysesthesia caused by the revision surgery. Given our conclusion on the absence of causation for the revision surgery, these consequences are not included in any assessment of permanent impairment as they are not caused by the motor accident.
Ms Kolyvas otherwise suffered bruising in the motor accident on the right side to the abdomen and right shoulder. These conditions have resolved and give rise to no assessable impairment.
Whilst there is an ongoing cervical spine condition, there is no assessable permanent impairment caused by the motor accident.
Treatment disputes
Eleven of the treatment disputes seek findings on the causal nexus between the motor accident and the treatment.
The other eleven disputes seek a determination on whether the treatment is “reasonable and necessary in relation to the injury sustained in the subject accident”. This is unfortunately expressed because the answer to those 11 questions requires a positive response to whether the treatment is both:
(a) reasonable and necessary, and
(b) in relation to the injury.
The issue of reasonable and necessary is distinct from the issue of causation. These principles have been discussed elsewhere by Review Panels.[72] The MAC Act characterises them as separate issues. Unfortunately, the framing of the question in the referral means that a negative answer to causation will provide a negative answer to the combined question.
[72] See for example the discussion in Venizelou v AAI Ltd [2021] NSWPICMP 215 at [106]- [132].
It is unfortunate that the present medical disputes are poorly worded and conflagrate, for half of the questions, issues which should have been separated. Further, the submissions did not independently address the 22 treatment questions.
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[73]
[73] [2018] NSWSC 1710 (Phillips) at [29].
The Panel has concluded that the onset of left groin pain and the deterioration of that condition was not caused by the motor accident. In these circumstances there is no causal relationship between the hip condition and the revision hip surgery with the motor accident.
The revision hip surgery was responsible for the development of the lumbar spine pain. Our findings on causation of the hip replacement means that the lumbar spine condition is not causatively related to the motor accident.
These findings means that questions 1 and 2 are answered in the negative.
Questions 3 and 4 concern future hip replacements. These are unrelated to the motor accident. We note, in any event, that the revision surgery improved the claimant’s condition as it removed the acetabular impingement. Future hip replacements will be required as the replacement lasts in the order of 15 years. However, that future treatment has nothing to do with the motor accident.
Questions 9 and 10 again concern future neurological treatment arising from the hip replacement. For the reasons expressed, these are unrelated to the motor accident.
Question 17 to 22 relate to various narcotic medication. We are required to consider the causative relationship and the issue of reasonable and necessary insofar as it related to the cervical spine injury. Ongoing long-term use of this type of medication is not required for the cervical spine condition and is otherwise medically dangerous as it causes habituation and other long term adverse medical consequences. Appropriate short term simple analgesia may be required but the Panel was not asked to consider that type of medication.
The claimant has ongoing symptoms in the cervical spine causatively related to the motor accident. There are a number of remaining questions which relate to future treatment, they are questions 5 – 8 and 11 – 16.
We observe that we are considering the question based on the balance of probabilities for future treatment. Our role is not the same as a finding of a future loss in accordance with the principles discussed in Malec v Hutton[74] when a Court assesses damages based on a future contingency. Medical Assessors (and Review Panels) are making a different determination which is otherwise clear from the questions that have been framed for our consideration.
[74] [1990] HCA 20 per Deane, Gaudron and McHugh JJ at [7].
The Panel does not accept that there is a causative relationship and/or a need for any orthopaedic assessment for the cervical spine condition given the present symptoms and pathology in that region. These findings also apply to the need for future scans and whether they are otherwise necessary (questions 15 and 16).
Questions 7 and 8 concern future treatment by a general practitioner, which on our findings, can only relate to the cervical spine condition. As we noted, we are determining the position as at this time and not for future contingencies. Based on the current examination findings, we do not accept that there is causative relationship between that treatment. This treatment is otherwise not necessary given the present condition and proposed future course of the condition.
The other questions concern physiotherapy and osteopathic treatment for the cervical spine injury. We do not accept that continuous physiotherapy and osteopathic treatment on a regular basis is necessary. Intermittent flare ups of the cervical spine may occur although we cannot say that they will occur. In those circumstances, there may be a need for a short-term treatment plan. We cannot say that this will occur although there is a possibility that it will occur. In those circumstances we answer the questions as no whilst acknowledging that a different response would be required if it was being assessed on a future contingency basis.
CONCLUSION
For these reasons the two medical assessment certificates dated 10 August 2021 are revoked. The replacement certificates are attached at the commencement of these Reasons.
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