QBE Insurance (Australia) Limited v Mawson
[2023] NSWPICMP 536
•25 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Mawson [2023] NSWPICMP 536 |
| CLAIMANT: | Gregory Mawson |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 25 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – On 26 February 2018, following revision right hip replacement surgery, the claimant was travelling in a patient transport van in a semi-recumbent position when it was involved in a rear end collision; back doors of van cut out to extract claimant; following ongoing complaints and investigation a rupture of the gluteus tendon diagnosed on 29 June 2018 and a chest X-ray on 30 July 2018 identified a T8 fracture; dispute as to causation; Medical Assessor (MA) Kenna found the tendon rupture and T8 fracture were caused by the accident and were non-threshold injuries; Held – test for causation as per Briggs v IAG Limited Trading as NRMA Insurance; tendon rupture and T8 fracture caused or materially contributed to by the accident; certificate of MA Kenna affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor Clive Kenna dated 12 July 2022. |
STATEMENT OF REASONS
INTRODUCTION
On 26 February 2018 Mr Mawson (the claimant) was travelling as a patient in a New South Wales Patient Transport van when the insured vehicle collided with the rear of the transport van (the accident). At the time Mr Mawson was being transported from Gosford Private Hospital to Brisbane Waters Private Hospital following a revision right hip replacement.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Mawson under the Motor Accident Injuries Act 2017 (MAI Act).
At the time of the accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Medical Assessor Kenna issued a certificate dated 12 July 2022 in which he certified Mr Mawson has sustained a non-minor (threshold) injury.
As a result, Mr Mawson has an ongoing entitlement to statutory benefits under the MAI Act.
The insurer has sought a review of the certificate of Medical Assessor Kenna.
BACKGROUND
Mr Mawson is 72 years of age.
Mr Mawson alleges he sustained the following injuries in the accident:
· aggravation of right hip pain and disability;
· musculoligamentous injury to pelvis;
· musculoligamentous injury to right hip;
· fracture of T8 vertebrae;
· wedging of T7 vertebrae;
· musculoligamentous injury to back;
· musculoligamentous injury to thoracolumbar spine;
· musculoligamentous injury to lumbosacral spine, and
· aggravation of post-traumatic stress disorder.
Mr Mawson’s comorbidities include myasthenia gravis, diabetes, hypertension, asthma, morbid obesity, repeated bilateral hip replacements and associated chronic osteoarthritis, bilateral rotator cuff tendonitis and carpal tunnel syndrome.
Mr Mawson originally underwent a right hip replacement in 1986. On 21 February 2018 the claimant underwent revisionary right hip replacement surgery.
On 22 May 2019 Mr Mawson lodged an Application for personal injury benefits.
On 22 May 2020 the insurer advised liability had been accepted for the payment of statutory benefits up until 27 August 2018. The insurer also determined that Mr Mawson had sustained a minor (threshold) injury.
On 18 June 2020 Mr Mawson sought an internal review of the minor (threshold) injury decision and on 29 July 2022 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including whether the injury caused by the motor accident is a minor (threshold) 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.[1]
[1] Section 7.20 of the MAI Act.
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. 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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents 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 threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold 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.”
In respect of injury to the neck or spine Clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 Radiculopathy 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.
5.9 Where 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 threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[2] his Honour Justice Wright stated at [35]:
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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.
6.6Causation 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.
6.7There 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.’”
ASSESSMENT UNDER REVIEW
The minor injury dispute was referred to Medical Assessor Kenna.[3] The injuries referred for assessment were the following:
· thoracic spine – T8 fracture of vertebral body, and
· pelvis – rupture of gluteus medius.
[3] Mawson Insurer Documents p 26.
Medical Assessor Kenna assessed the claimant on 6 July 2022 and issued a certificate dated 12 July 2022 in which he certified the following injuries caused by the accident are not minor (threshold) injury for the purposes of the MAI Act:
· pelvis – rupture of gluteus medius, and
· thoracic spine – T8 fracture of vertebral body.
In relation to causation Medical Assessor Kenna stated:
“The right hip injury in the accident is more compelling from the perspective of causation, as the severity of the injury would be consistent with the mechanism of the accident pertaining to the right hip.
In the accident, lying on the trolley in a semi-recumbent position and feet against the rear door, then as the door caved in, his right femur was shunted cephalically, with onset of right hip pain and sufficient force to cause gluteal tendon rupture. …
He then required surgery to tendons and muscle that involved either complete or partial rupture of tendons, ligaments or muscle and reconstruction. Similarly, such pathology and tissue damage could also have occurred in the MVA as the nature of the forces was substantial.”
Medical Assessor Kenna had regard to the definition of causation and stated:
“Also under the Guidelines, with regards to the nature of the injury and the forces involved, it would have to be acknowledged that the forces were not only more than minimal but were sufficient in themselves to have caused the injury – T8 compression fracture. That is the injury incurred is consistent with how the accident happened.”
Further, Medical Assessor Kenna stated:
“The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.
It is therefore possible that this injury (impairment) would not have incurred if not for the accident. (accident is total cause)
Similarly, the degree of wedge compression fracture may have worsened, increased or been contributed to (if it was to some extent pre-existing) by the accident (accident is partial but still a significant contributory factor)
Either way, the accident impact was more than negligible in both cases.”
However, inconsistencies were apparent in the opinion of Medical Assessor Kenna. He commented that he was concerned by the substantive time delay and considered it fairly implausible but not impossible that Mr Mawson would not have made a complaint and the T8 fracture come to attention prior to six months post-accident and stated:
“With regards to the thoracic vertebra, I am unable to show that this fracture was totally pre-existent or was either caused or partially contributed to by the accident, for the reasons as stated above, the force was clearly more than minimal.”
Notwithstanding the latter comment Medical Assessor Kenna concluded that both the rupture of the gluteus medius and the T8 fracture were caused by the accident and were non-minor (threshold) injuries.
REVIEW PROCEDURE
The insurer lodged an application for review of the assessment of Medical Assessor Kenna on 1 September 2022 one day outside the 28 day period within which the application for review was required to be lodged. The insurer provided an explanation and sought an extension of time under s 7.26(1)(b) of the MAI Act and rules 129 and 133 of the Personal Injury Commission Rules. The insurer also relied upon Procedural Direction PIC7.
On 24 October 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).[4]
[4] AD2 p 9.
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 that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).[5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] 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.[6]
[6] 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.[7]
[7] 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.
The insurer uploaded to the portal an indexed and paginated bundle of documents on 13 February 2022 labelled Mawson Insurer docs and paginated from pages 1 to 103. The claimant uploaded to the portal an indexed bundle of documents marked AD3 paginated from pages 1 to 176.
On 30 March 2023 the Panel issued a report to the parties which stated the Panel did not consider a re-examination of the claimant was required for the following reasons:
· the claimant has provided a statement dated 2 November 2021 where he provided a history of the accident and its sequalae;
· the insurer concedes if the ruptured gluteal tendon injury is found to be caused by the accident it would satisfy the definition of a non-minor injury;
· if the T8 vertebral fracture is found to be caused by the accident it would satisfy the definition of a non-minor injury, and
· the minor injury dispute will be determined according to the Panel’s findings as to causation of the T8 vertebral fracture and the rupture of the gluteus medius.
The Panel invited the parties by 4 May 2023 to confirm receipt of the report and confirm there was no objection to the Panel determining the dispute without medical examination.
The Panel also directed the claimant by 4 May 2023 to upload to the portal all radiological imaging of the spine and the chest undergone by the claimant in the period commencing 12 months pre-accident until 23 August 2018 including any imaging of the chest undergone by the claimant before and after the revision right hip replacement surgery on 21 February 2018.
The Panel directed the insurer by 4 May 2023 to upload to the portal the clinical records of Brisbane Waters Private Hospital for the period dating from the claimant’s admission on 26 February 2018 until 23 August 2018.
On 4 May 2023 the insurer uploaded to the portal the clinical notes of Brisbane Waters Private Hospital marked AD4.
On 4 May 2023 the insurer indicated consent to the dispute being determined on the papers and on or about 19 May 2023 the claimant indicated consent to the dispute being determined on the papers.
On 8 May 2023 the claimant uploaded to the portal the following X-rays:
· X-ray of the claimant’s chest dated 16 June 2020 marked AD5;
· X-ray of the claimant’s side dated 16 June 2020 marked AD6;
· X-ray of the claimant’s front marked AD7 dated 31 July 2014, and
· X-ray of the claimant’s chest (side) dated 31July 2014 marked AD8.
In late May 2023 the Commission received a disc with various X-ray images of the claimant’s chest and lungs undertaken on 12 September 2012, 31 July 2014 and 16 June 2020. Those images have been uploaded to the portal.
On 15 June 2023 an X-ray of the claimant’s chest undertaken at Gosford Hospital by PRP Imaging on 31 July 2014 was uploaded to the portal
The claimant furnished two USB’s to the Commission in response to the request for any imaging of the spine and chest undergone by the claimant between 26 February 2017 and 23 August 2018. The two USB’s were sent to Medical Assessor Berry to view on 20 July 2023.
After receipt of those USB’s the Panel, on 10 August 2023, sent the following direction to the parties:
“The Panel notes the letter sent by Brazel Moore Lawyers to Gosford Private Hospital dated 28 April 2023 seeking a copy of the following:
1.Any and all radiological imaging of the spine and the chest undergone by the claimant between 26 Febraury 2017 and 23 August 2018; and
2.Any chest imaging before and after the claimant’s hip surgery on 21 February 2018.
The Panel notes a letter in identical terms was sent by Brazel Moore Lawyers to Central Coast Local Health District on 28 April 2023.
A further letter in identical terms was also sent by Brazel Moore Lawyers to PRP Diagnostic Imaging on 28 April 2023.
On 28 June 2023 Brazel Moore Lawyers sent to the Commission the following:
1.Gosford Hospital Medical Imaging and Nuclear Medicine USB’s x 2; and
2.Gosford Hospital Medical Imaging and Nuclear Medicine Access Information Sheet.
Unfortunately, Medical Assessor Berry has been unable to open those USB’s to view the imaging. Medical Assessor Berry made enquiries with Gosford Wyong Imaging to see if they could assist him in viewing the images. He was informed there are no reports of chest X-rays performed in the public health system prior to the hip surgery in 2018. X-rays undergone on 31 July 2014 and 16 June 2020 have already been made available. He understands the images provided are in all likelihood images from 2020 which were performed in the public health system. If that is not correct, please advise.
The Panel notes the hip replacement surgery was performed on 21 February 2018 at Gosford Private Hospital. The Panel is seeking access to any reports or radiology of the chest undertaken prior to that surgery to establish if there was any T8 fracture apparent at that time. Even if there were no X-rays taken in the public health system there is the possibility such X-rays were undertaken in the private health system noting Mr Mawson’s admission to Gosford Private Hospital.
Accordingly, the claimant is directed to provide a copy of the clinical notes of Gosford Private Hospital in respect of the claimant’s admission for hip replacement surgery on 21 February 2018 or alternatively correspondence from Gosford Private Hospital confirming that no chest X-rays were performed during that admission.
The Panel regrets the delay but notes the difficulty which has been experienced in accessing the relevant records. On provision of a copy of either those clinical notes or confirmation that no X-rays were undertaken the Panel will proceed to determine the dispute on the documents currently available.”
Because Medical Assessor Berry could not open either USB he arranged for a courier to return them to the Commission. Unfortunately, the courier lost the parcel containing the USB’s.
The Commission asked Brazel Moore, the claimant’s lawyers to obtain, at the Commission’s expense, a further copy of each USB. Whilst there was some doubt about whether either USB would include imaging of the claimant’s chest undergone in the period 12 months pre-accident and up until 23 August 2018 the Panel was reluctant to finalise this decision without reviewing the contents of each USB.
On 11 August 2023 the clinical records of Gosford Private Hospital were uploaded to the portal.
On 11 October 2023 the Commission received two USB’s from Gosford and Wyong Hospital. The images on each USB were identical. The images provided were of the following:
· CT Angiogram neck with circle of Willis dated 16 December 2019;
· CT chest dated 30 December 2019;
· MRI head dated 7 January 2020;
· ultrasound doppler venous lower right limb dated 26 February 2018;
· X-ray chest dated 7 June 2020;
· X-ray foot right dated 26 February 2018, and
· X-ray pelvis and right hip dated 26 February 2018.
EVIDENCE BEFORE THE REVIEW PANEL
Application for personal injury benefits
Mr Mawson completed the Application for personal injury benefits on 26 February 2019 (12 months post-accident) in which he listed his injuries as “2 crushed vertebrae (7 and 8), hairline fracture of the hip, hip tendon torn off bone, psychological flashbacks.”[8]
[8] Mawson Insurer docs p 77.
Statement of Gregory Mawson
Mr Mawson provided a statement dated 2 November 2021. Adopting the numbering used in that statement he relevantly stated:
“17. … The driver in front of the Ambulance suddenly stopped, as she was looking for a car park. As a result, the Ambulance driver slammed her brakes on. With the driver braking suddenly, she was unable to stop in time and ran into the back of the vehicle in front of us.
18. Out the back window of the ambulance, I could see a large four-wheel drive coming towards me and I knew it would not be able to stop in time. The car collided with the ambulance very hard. My sandwich (Lunch) and phone that was in my hand had fallen under the gurney from the impact and I was pushed head first into the driver’s seat.
20. The back of the ambulance was badly damaged, and I was trapped for a period of time. …they had to cut the back off the ambulance, with the jaws of life, for me to get out.
21. … I do not recall any pain at first as I was in shock. … I recall telling the Ambulance nurse that, ‘I think I hurt my back’.
22. At the Gosford Hospital I had X-rays and observations done which revealed I had extensive bruising, including to my pelvis and hip area. … I also felt pain in my mid back especially.
23. I remained at Brisbane Waters Private Hospital for 6 weeks which is 4 weeks longer than initially required. I complained of back pain. I wasn’t until Dr Chang said something along the lines of, ‘did you know you have a fracture?’. I thought at the time that probably explained why I had been having back pain since the … accident”.[9]
[9] AD3 p 37.
Report of NSW Ambulance Service[10]
[10] Mawson Insurer docs p 50.
The report states:
“PTO states they were driving at low speed west along Racecourse Rd, when they have stopped for car suddenly turning in front of them, when a vehicle behind has rear ended into back of Patient Transport van, Pt trapped on stretcher by confinement. Pt states he had his feet leaning against the back doors of the vehicle, immediately on impact, Pt c/o pain into R hip. Pt was being transferred from Gosford Private Hosp, post R hip replacement 1/52 ago, to Brisbane Water Private, for rehab. Pt was well secured with seatbelts/straps, was in a semi recumbent position. Fire Rescue had to mechanically remove back doors to allow extrication. O/E Pt alert, GCS 15, flushed, c/o mild pain to R hip at rest, with swelling to entire R leg/foot, Pt states was apparent on discharge from Gosford Private, which they stated would ease 24/24. Pt had oxycontin approx 0930 this am. Pt states prior to accident his pain was 2/10 at rest, increasing to 9/10 upon movement, as he has been ambulating with crutches to toilet”.
Treating medical evidence
Gosford Private Hospital
The records of Gosford Private Hospital pertaining to the admission on 21 February 2018 do not include any records of any chest X-ray undertaken prior to the revision right hip replacement surgery undergone by the claimant on 21 February 2018.[11]
[11] Records Gosford Private Hospital p 527.
Gosford Hospital
The Discharge Referral Notes state:
“Gregory Mawson was BIBA after MVA en route with patient transport between hospitals. The patient was restrained in rear of vehicle on a stretcher … when the vehicle was rear ended. Recently have had a right THR (21/02) at NGPH with Dr Hasn. On review he was complaining of right hip pain and foot pain.”
Following the accident Mr Mawson was taken back to Gosford Hospital. The right lower limb was swollen and painful and he underwent a right lower limb venous doppler. There was no evidence of DVT within the right lower limb.
An X-ray confirmed the hip prosthesis was in a satisfactory position with no peri-prosthetic fracture demonstrated.
He underwent an X-ray of the right foot – no fracture or dislocation was seen.
Clinical notes of Absolute Medical Services
On 30 June 2017 Dr Anderson reported bilateral THR’s (total hip replacement) in 1986 and noted Mr Mawson had experienced increasing hip pain for some years with X-rays demonstrating component wear.[12]
[12] AD3 p 85.
On 26 March 2018 Dr Anderson recorded:
“Second THR revision ((R) side) 21/02/2018.
Has been going OK (except for ambulance accident en route from GPH to WWR).
Increased pain in last week. Sweats”.[13]
[13] Mawson Insurer docs p 84.
On 12 April 2018 Dr Anderson reported Mr Mawson still needs significant analgesia for the total hip replacement. On 27 June 2018 Dr Anderson reports, inter alia, “Dr Hasn arranging further surgery to reattach abductor tendon”.
On 23 August 2018 Dr Anderson’s consultation entry reads:
“(R) hip adductor tendon repair 4 weeks ago.
Chest and abdominal X-rays were requested by Dr Stephen Chung as part of a septic work-up. Abnormalities for follow-up.
Relatively minor (?scarring? lung changes and incidental possible thoracic vertebral crush #.”[14]
[14] Mawson Insurer docs p 85.
The next relevant entry appears on 17 September 2019 when Dr Anderson records: “MRI scan wanted by barrister for persisting mid-back pain since MVA Feb 2018”.[15]
[15] Mawson Insurer docs p 93.
On 1 July 2020 Dr Anderson’s telephone consultation entry refers to “some pleuritic back pain”.[16]
[16] Mawson Insurer docs p 92.
On 31 December 2020 Dr Anderson reported Mr Mawson had a fall with bruising to the left forearm and a painful left thumb.
On 7 January 2021 Dr Anderson reported Mr Mawson had a painful left hip following an awkward move when he jumped onto the bed. He reported: “Gives way (?due to pain) when walking on it”.[17]
[17] Mawson Insurer docs p 96.
Dr Stuart Anderson, Certificate of Capacity, 26 July 2019
The certificate provides a diagnosis of “right hip and back pain (no ray abnormalities at hospital)”.[18]
[18] Mawson Insurer docs p 72.
Dr Hasn, orthopaedic surgeon
In a report dated 2 November 2017 Dr Hasn reported Mr Mawson had undergone bilateral staged primary PCA cementless total hip replacement in 1986.[19] Acetabular wear had led to the failure of the implant on both hips. He also noted osteolysis in both hips, slightly more prominent on the right than the left. He noted the polyethylene wear was more significant on the left and Mr Mawson was on the verge of potentially dislocating his left hip replacement. He considered revision hip replacement was indicated.
[19] Mawson Insurer docs p 83.
On 7 November 2017 Dr Hasn reported the CT scan confirmed bilateral large osteolytic defects in both acetabulae.[20]
[20] AD3 p 47.
Mr Mawson underwent a revision left hip replacement and abductor tendon repair at Gosford Private Hospital on 24 November 2017. The surgery was described in a report from Dr Hasn dated 30 November 2017. [21]
[21] AD3 p 49.
On 17 January 2018 Dr Hasn reported Mr Mawson had lost his pre-operative pain, he had post-operative discomfort which was gradually improving but was also troubled by increasing pain in his right hip.[22]
[22] AD3 p 51.
Dr Hasn provided an operation report dated 22 February 2018 in respect of the revision right hip replacement performed at Gosford Private Hospital on 21 February 2018.[23] He noted:
“A posterolateral approach incorporating only a part of his previous wound was used. On this occasion, his abductor tendon was intact, as opposed to his left hip”.
[23] Mawson Insurer docs p 81.
On 3 May 2018 Dr Hasn reported Mr Mawson had on-going pain and feelings of instability in his right hip which he thought was related to trochanteric bursitis and abductor tendon pathology. He stated he closely checked the abductor tendon at the time of surgery, and it was intact but Mr Mawson was having great difficulty in abducting due to pain and there was tenderness in the region of the greater trochanter.[24]
[24] AD3 p 47.
In a report dated 4 July 2018 Dr Hasn stated:[25]
“MRI shows an intact gluteus medius tendon but unfortunately, shows a significant tear of his gluteus minimus tendon, which is buried beneath the gluteus medius. This is the reason it was not visible at the time of surgery, unlike his left hip where both tendons had been torn for several years”.
[25] Mawson Insurer docs p 56 and AD3 p 59.
Mr Mawson underwent repair of his right hip abductor tendon on 16 July 2018. In his operation report dated 17 July 2018 Dr Hasn reported:
“The gluteus medius superficially was confirmed as being intact but on incising the tendon to access the gluteus minimus tendon, there was evidence of extensive degenerative change and delamination of both tendons.” [26]
[26] AD3 p 60.
In a report dated 6 September 2018 Dr Hasn states Mr Mawson had lost the pain he had prior to the surgery but noted during rehabilitation he had been found to have a crush fracture of T8.[27]
[27] Mawson Insurer docs p 82 and AD3 p 61.
On 24 October 2018 Dr Hasn reported it was three months following the right hip abductor tendon repair and Mr Mawson had ongoing discomfort with prolonged walking.[28] On 24 January 2019 Dr Hasn reported Mr Mawson still had symptoms related to his abductor tendons.[29]
[28] AD3 p 64.
[29] AD3 p 66.
Brisbane Waters Private Hospital
Mr Mulford was admitted to Brisbane Waters Private Hospital on 26 February 2018 following transfer from North Gosford Private Hospital.[30] He was discharged on 9 March 2018. The Discharge Summary states:
“Mr Mawson underwent a revision of R THR under Dr Hasn at NGPH. Unfortunately during transfer between NGPH and BWPH the transport vehicle was involved in an accident. It was rear ended by another vehicle resulting in Mr Mawson’s’ legs being forced into the rear doors. He was subsequently redirected to Gosford Public Hospital for further assessment. Fortunately he did not sustain any boney injuries and was cleared for transfer to BWPH for rehabilitation under the care of Dr Chung. On admission he was independent with transfers and mobiling with a 2WPUF….”[sic]
[30] AD4 p 315.
Mr Mulford was given anti-inflammatory medical and analgesic medication including Endone whilst an inpatient.
Mr Mulford had a further admission to Brisbane Waters Private Hospital between 20 July 2018 and 3 August 2018 for post repair right hip abductor surgery.
On 30 July 2018 it was recorded Mr Mulford felt unwell and required a “septic work up – chest infection/urine sample/bloods”.[31] It was in this context that a chest X-ray was ordered. It was this chest X-ray which disclosed the fracture of T8.
[31] AD4 p 148.
Imaging
Chest X-ray, Gosford Hospital, 31 July 2014 – the Medical Assessors viewed the X-ray images and noted a fracture at T8 was not apparent.
X-ray pelvis and both hips, 18 October 2017 – findings reported as follows:
“Comparison 21/3/2017 and 17/05/2013
Alignment in the pelvis is satisfactory. Bilateral THR noted with overall appearance and alignment similar to the prior study.
Heterotopic bone formation is seen adjacent to the greater trochanters on each side. There is minor focal cortical thickening at the inferior aspect of the right femoral prosthesis but the appearances are similar to prior study.
Lucency is seen surrounding bilateral acetabular components and this is similar to prior studies…”.[32]
[32] AD3 p 41.
CT both hips, 3 November 2017 – findings reported:
“There is extensive osteolysis related to the acetabular component of left hip prosthesis thinning the cortex, particularly medial and lateral to the prosthesis. There is also some osteolysis relating to the femoral stem component causing mild thinning of the cortex but not to extent of the osteolysis related to the acetabular component.
There is also extensive osteolysis with cortical thinning related to the acetabular component of the right hip replacement, with the osteolysis extending into the ischium and to the lateral aspect of the right inferior pubic ramus. There is mild osteolysis related to the femoral stem component, similar degree to the left side”.[33][33] AD3 p 45.
X-ray of the pelvis, 30 November 2017 reported bilateral hip replacement and no periprosthetic fracture.[34]
[34] AD3 p 48.
X-ray of the left hip and pelvis, 11 January 2018 reported bilateral hip replacements. There were no complicating features. No periprosthetic fracture or luceny.[35]
[35] AD3 p 50.
X-ray pelvis and right hip, 21 February 2018 – the report reads:
“Revision of the prosthetic right hip joint is noted. The prosthetic joint appears to be in a satisfactory position and alignment. No periprosthetic fracture. Surgical drain is seen in situ. Older left THR and a urinary catheter are also noted”.[36]
[36] AD3 p 52.
X-ray of the pelvis, 26 February 2018 showed the THR (total hip replacement) enlocated.
Right foot X-ray disclosed nil acute bony injury.
X-ray and MRI right hip, 29 June 2018 concluded:
“High-grade partial-thickness tear at the gluteus minimus insertion with peritendinitis and trochanteric bursitis. Gluteus medius insertional tendinopathy with no discrete tear. There is fluid extending from the trochanteric bursa through the defect in the iliotibial band to the subcutaneous tissues, likely bursitis and post-operative fluid with granulation/scar tissue”.[37]
[37] AD3 p 57.
Chest X-ray, 30 July 2018 – the indication given for the X ray was “Septic workup. Feels lethargic. Body feels warm despite afebrile. On long term Prednisolone”. The report states inter alia the following:
“Mild wedging of a mid thoracic vertebral body? T8, by 10 - 15%, and a lesser degree of wedging at T7. Bony thoracic cage otherwise unremarkable.”[38]
Medico-legal reports
[38] AD4 p 200.
Dr Bodel assessed Mr Mawson and provided a report at the request of his lawyers.
Dr Bodel reported following the accident Mr Mawson was extensively bruised and X-rays were taken which showed that he did have some fractures involving the lumbar spine which he concluded was probably the crush fracture to the T8 vertebral body. Dr Bodel also concluded he had the avulsion injury to the gluteus medius.
Dr Bodel states:
“I note in letters prior to the accident that Dr Hasn was concerned that there was some tendinopathy in the abductor tendon which predated the motor vehicle accident but the motor vehicle accident has caused a rupture of the tendon which led to the need for the repair.”
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 19 January 2022.[39] The insurer submits that the significant tear of the gluteus minimus tendon on the right and tears of the left hip gluteus minimus and gluteus medius tendons had been present for several years.
[39] Mawson Insurer docs p 13.
Whilst it was generally accepted the accident resulted in a temporary exacerbation of the post-surgical right hip pain this would have resolved within the short term. Dr Hasn, the claimant’s surgeon stated the post-operative hip pain had resolved by September 2021.
The insurer argues the accident did not result in an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
In relation to alleged musculoligamentous injuries to the thoracolumbar and lumbosacral spine and the T8 vertebral fracture the insurer submits:
· there was no complaint of back pain immediately following the accident;
· at Gosford Hospital the claimant returned an unremarkable physical examination, and the discharge report sates “no other injuries identified”;
· there was no report of back injury during the two week rehabilitation admission at Brisbane Waters Private Hospital;
· there is no mention of any back injury until 17 August 2017, six months post-accident, and
· the initial Certificate of Capacity diagnosed “right hip and back pain (no X-ray abnormalities)” and recommended conservative management only.
The insurer notes that the opinion of Dr Bodel that the post-accident imaging demonstrates a T8 vertebral body fracture is inconsistent with the discharge summary from Gosford Hospital. The insurer submits that the injury was pre-existing, degenerative and age-related and independent of the accident.
The insurer submits any spinal injuries are soft tissue and therefore, minor in nature.
The insurer provided further submissions dated 25 March 2022.[40]
[40] Mawson Insurer docs p 23.
The insurer refers to the additional clinical notes of Absolute Medical Centre which the claimant submits indicates there is no pre-accident history of back pain. However, the insurer notes the records provided all relate to post-accident consultations. The insurer submits:
· in a consultation on 23 August 2018, it was reported that the possible vertebral crush fracture was an incidental finding;
· the claimant had not attended that practice since August 2018 for complaints relating to the accident notwithstanding regular and detailed consultations pertaining to comorbidities;
· the first record of lumbar pain is on 18 March 2020 where the claimant described a three to four day history of same but made no mention of the accident;
· on 1 July 2020 Dr Anderson opined that the claimant’s back pain was pleuritic in nature;
· a diagnosis of complex regional pain syndrome was made on 6 August 2020;
· there were no contemporaneous complaints relating to the thoracic spine at any time;
· the claimant has been admitted to hospital several times for significant pain caused by unrelated facet joint inflammatory arthropathy, and
· the claimant suffered an undisclosed fall on 30 December 2020.
The insurer notes on 7 January 2021 Dr Anderson reported that the claimant suffered similar symptoms in the left hip. He stated the left hip injury was “likely soft tissue injury but in view of osteopenia…” recommended further investigation. The insurer submits this suggest the right hip injury is similarly a result of the pre-accident pathology.
The insurer provided submissions dated 31 August 2022 in support of the application for review.[41]
[41] Mawson Insurer docs p 3.
The insurer submits Medical Assessor Kenna erred in a material respect with regards to his assessment of causation of the fracture of T8.
The insurer notes Medical Assessor Kenna concluded that the claimant has “enormously restricted movement of the thoracic spine anyway, with predates the motor vehicle accident” but still found no relevant history of thoracic pain.
Medical Assessor Kenna reported the claimant had not been involved in subsequent accidents but failed to consider the subsequent history including:
(a) the diagnosis of complex regional pain syndrome on 6 August 2020 which may explain the thoracic pain and “enormously restricted movement”;
(b) the claimant’s hospital admissions with complaints of significant pain caused by unrelated facet joint inflammatory arthropathy, and
(c) the claimant sustained unknown physical injuries in a fall on 30 December 2020.
The insurer also notes that whilst Medical Assessor Kenna said he could not determine whether the T8 fracture was totally pre-existing or caused or partially contributed to by the accident he then determined the T8 fracture was caused by the accident.
The insurer submits there are material errors in the assessment pertaining to the right hip. Medical Assessor Kenna addresses causation of the gluteal rupture on pages 9 and 10 of his Certificate where he determines:
(a) the rupture of the gluteal tendon is a non-minor injury that is consistent with the mechanism of the accident, and
(a) in the alternative, the claimant required surgery as a result of injuries sustained in the accident and the surgery resulted in a non-minor injury as it required either a complete or atrial rupture of tendons, ligaments or muscle and reconstruction.
The insurer states were it to be conclusively established that the claimant sustained a ruptured gluteal tendon injury in the accident the insurer accepts it would satisfy the definition of a non-minor injury. However, the insurer dispute the finding as to causation for the following reasons:
(a) the insurer submits the claimant had right hip pain following the accident, however, an ambulance report indicates this complaint was apparent (before the accident) on discharge from Gosford Hospital;
(b) the insurer notes that the right hip pain “onset immediately post-accident” is incongruent with the available documentation, and
(c) it was not until July 2019 that the claimant was found to have a significant tear of the right gluteus minimus tendon after four months of intensive right hip rehabilitative physiotherapy.
The insurer submits that determination that the surgery required either a complete or partial rupture of tendons, ligaments or muscle and reconstruction and would satisfy the definition of a non-minor injury is an error.
The insurer provided submissions dated 19 September 2022 addressing the delay in lodging the application for review.
Claimant’s submissions
The claimant provided submissions dated 24 February 2023 in support of the application for review.
The claimant submits there is no evidence of any symptoms of a gluteus medius injury pre the accident. Even if there was a tear or aggravation of pre-existing pathology of degenerative tendonitis it is submitted this also implicates the accident. Prior to the accident there was no plan to explore and repair the abductor tendon.
The claimant submits he had no right hip pain subsequent to his right hip operation and prior to the accident.
The claimant notes that Dr Hasn and Dr Bodel both support the opinion of Medical Assessor Kenna as to causation noting the following:
· there were no symptoms of tendon rupture before the accident in the right hip;
· the severity of the impact;
· the immediate recording of pain in the right hip which includes the tendon;
· the claimant states the pain experienced was not the pain he had previously experienced in the right hip;
· the available medical opinions, and
· the absence of any medical opinion contrary to that of Medical Assessor Kenna.
The claimant submits there is no evidence the claimant’s thoracic back was symptomatic in any way before the accident. There is no other probable cause of the claimant’s thoracic fracture other than the severe impact from the accident.
The claimant submits if the T8 fracture was caused or materially contributed to by the accident the causation test has been satisfied. It is noted that Medical Assessor Kenna took account of the claimant’s pre-accident kyphosis and the restriction of movement because of that but notes that the claimant had been pain free in the thoracic spine before the accident.
The claimant provided submission dated 5 October 2022 addressing the test to be applied by the Delegate in determining whether there was reasonable cause to suspect that the certificate of Medical Assessor Kenna was incorrect in a material respect.
THE PANELS REASONING
Causation
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[42] His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[42] Briggs [2022] NSWSC 372.
Thoracic spine – fracture of T8
In considered causation of the T8 vertebral fracture the Panel sought to view any chest imaging undergone by the claimant prior to the revision hip replacement surgery on 21 February 2018 on the basis such imaging, likely, would have disclosed any pre-existing T8 vertebral fracture. Unfortunately, it does not seem such imaging exists.
The Panel also notes there is no evidence of complaints pertaining to the back before the accident.
The Panel concedes the accuracy of the insurer’s submissions in respect of causation of the T8 vertebral fracture as follows:
· there was no complaint of back pain immediately following the accident;
· at Gosford Hospital the claimant returned an unremarkable physical examination, and the discharge report sates “no other injuries identified”;
· there was no report of back injury during the two week rehabilitation admission at Brisbane Waters Private Hospital;
· there is no mention of any back injury until 17 August 2017, six months post-accident, and
· the initial Certificate of Capacity dated 26 July 2019 diagnosed “right hip and back pain (no X-ray abnormalities)”.
Whilst Mr Mawson states that he complained of back pain following the accident to the ambulance nurse, at Gosford Hospital and whilst a patient at Brisbane Waters Private Hospital although there is no mention of back pain in those records. Indeed, the discharge notes of Gosford Hospital only mention right hip pain and foot pain.
Certainly, the Certificate of Capacity dated 26 July 2019 refers to back pain, however, it is not a contemporaneous record noting the accident occurred on 26 February 2018.
The opinion of Dr Bodel is reliant on an inaccurate history. Dr Bodel reported following the accident Mr Mawson was extensively bruised and X-rays were taken which showed that he did have some fractures involving the lumbar spine. This is not correct, as the fracture of the lumbar spine was first identified in a chest X-ray of 30 July 2018, some five months later. Accordingly, the Panel does not propose to rely upon the opinion of Dr Bodel as to causation of the T8 fracture.
The Panel notes the insurer submits it should consider the claimant’s subsequent history including the diagnosis of complex regional pain syndrome on 6 August 2020 and the claimant’s hospital admissions said to relate to facet joint inflammatory arthropathy. However, whether the Panel has suffered from either of those conditions the presence of the T8 vertebral fracture and the rupture of the gluteus medius were diagnosed by imaging and the only question for the Panel is the causation of each of those conditions.
The ambulance reports states the claimant was well secured with seatbelts/straps in a semi recumbent position on a stretcher with his feet leaning against the back doors of the Patient Transport van. In his statement Mr Mawson stated the insured vehicle collided with the ambulance very hard, and he was pushed head first into the driver’s seat. The ambulance report confirms that Fire Rescue had to mechanically remove the back doors to allow Mr Mawson to be extricated from the vehicle. The available evidence suggests the impact would have forcibly shunted Mr Mawson’s body feet first with his head being pushed into the driver’s seat.
In accordance with Briggs the Panel notes the legal test in respect of causation does not require scientific certainty.
The Panel is satisfied the compression fracture of T8 was caused or materially contributed to by the accident having regard to the following:
· there is no evidence of a pre-existing T8 fracture prior to the accident;
· the claimant asserts, he complained of back pain following the accident, albeit those complaints are not corroborated by the contemporaneous medical records;
· the forces involved in the accident having regard to the claimant’s semi-recumbent position on the stretcher were sufficient to push him head first into the driver’s seat;
· the insured vehicle was a large four-wheel drive;
· the description of the impact as “very hard”;
· it was necessary to cut the back of the patient transport van and remove the doors to extract the claimant from the vehicle;
· there is no evidence of any other intervening event which could have been causative of the T8 compression fracture between the accident and the chest
X-ray of 30 July 2018 when the T8 fracture was first identified, and· the force of the impact was sufficient to cause the compression fracture.
Accordingly, the Panel finds the compression fracture of T8 meets the definition of a non-threshold injury.
Pelvis – rupture of gluteus medius tendon
Mr Mawson has stated that his hip was increasingly sore after the accident. Indeed, it was apparent from the records of Gosford Hospital that his right lower limb was swollen, an X-ray confirmed the hip prosthesis was in a satisfactory position and he also underwent a right lower limb venous doppler to establish there was no evidence of DVT (deep vein thrombosis).
On 26 March 2018 Dr Anderson noted Mr Mawson was complaining of increased pain and on 12 April 2018 he reported he still needed significant analgesia for the total hip replacement.
On 3 May 2018 Dr Hasn reported Mr Mawson had ongoing pain and feelings of instability in his right hip.
An X-ray and MRI of the right hip on 29 June 2018 disclosed a tear of the gluteus minimus tendon.
In his operation report of 17July 2018 Dr Hasn noted whilst the gluteus medius superficially was confirmed as being intact on incising the tendon to access the gluteus minimus tendon there was evidence of extensive degenerative change and delamination of both the gluteus medius and gluteus minimus tendon.
The Panel concluded that the tendon rupture was caused or materially contributed to by the accident for the following reasons:
· the mechanism of the accident where the ambulance report recorded that Mr Mawson’s legs were leaning against the back doors of the transport vehicle when it was rear ended by the insured vehicle resulting in Mr Mawson’s legs being forced into the rear doors;
· where immediately following the impact Mr Mawson complained of pain into the right hip and he was noted to have swelling to the entire right leg and foot;
· following the accident there were worsening and different symptoms in the right hip, despite there being no issue with the prosthesis;
· despite normal rehabilitation in the context of the arthroplasty, there were ongoing atypical complaints that led to a further exploration of the cause;
· there were no symptoms or objective radiological or surgical evidence of tendon rupture prior to the accident, and
· despite there being evidence of degenerative change, the Panel could not exclude the prospect that the accident had caused rupture to a potentially already weakened tendon.
The insurer conceded if it was established that the claimant sustained a ruptured gluteal tendon injury in the accident the insurer accepts it would satisfy the definition of a non-threshold injury.
CONCLUSION
The Panel affirms the certificate of Medical Assessor Clive Kenna dated 12 July 2022.
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