Saunders and K & S Freighters Pty Ltd (Compensation)

[2022] AATA 722

Saunders and K & S Freighters Pty Ltd (Compensation) [2022] AATA 722 (11 April 2022)

Division:GENERAL DIVISION

File Number(s):      2020/3366

Re:Roger Saunders

APPLICANT

AndK & S Freighters Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth and Member Doctor L Stephan

Date:11 April 2022

Place:Adelaide

The decision under review is affirmed.

.................................[SGND]...................................

Senior Member B J Illingworth

Catchwords

COMPENSATION – injury – pre-existing osteoarthritis – pre-existing hip degeneration – trochanteric bursitis – fall when alighting from the cabin of the truck – Tribunal finds that the natural progression of the change of his degenerative condition unaffected by the fall – decision is affirmed

Legislation

Safety, Rehabilitation and Compensation Act1988 (Cth)

REASONS FOR DECISION

Senior Member B J Illingworth and Member Dr L Stephan

11 April 2022

INTRODUCTION

1.The applicant is a 61-year-old truck driver employed by the respondent.

2.On 5 July 2016, the applicant suffered an injury as a result of a fall when alighting from the cabin of his truck. He landed on the right side of his body. In his Incident Report dated 6 July 2016 he said the incident occurred at 2100 hours, and variously described the injury as affecting his back and shoulder, and that he landed on his right side and “felt more pain on his lower right side and right shoulder.”[1]

[1] Exhibit A, attachment T4, pages 9 – 10.

3.In his “Claim for Workers Compensation”[2] dated 21 July 2016 (the first claim) pursuant to the Safety, Rehabilitation and Compensation Act1988 (the SRC Act), the applicant described his injury as a right shoulder impingement and a lumbar strain on the right hip and that the parts of his body most affected were the right shoulder and hip. He described the events leading to the accident namely that he had driven a Scania truck from Adelaide to Melbourne. The seating was very poor and uncomfortable causing major lower back pain. His legs felt numb, and he suffered numbness and soreness in the lower back which caused him to lose his footing when alighting from the truck, and then falling to the ground landing on his right side.

[2] Exhibit A, attachment T5, pages 11-23

4.The applicant’s claim for compensation was initially rejected but upon review to the Administrative Appeals Tribunal (the Tribunal), the matter was resolved. Pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the Tribunal decision dated 25 November 2019 provided inter-alia:

“the Respondent is liable to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of “strain of right shoulder causing bursitis of AC joint and strain of right hip causing trochanteric bursitis” said to have been sustained on 5 July 2016;”

Current Claim

5.The applicant had been referred to Orthopaedic Surgeon Dr Munt in 2018 by his then treating general medical practitioner Dr Taylor. Dr Munt provided various reports prior to the resolution of the first claim for compensation pursuant to the SRC Act.

6.On 4 December 2019, the applicant was again referred to Dr Munt by general practitioner Dr Selvadurai. The referral reads “…thank you for seeing roger for his right shoulder and for his right hip which symptomatically sounds like it will need a replacement.”[3]

[3] Exhibit A, attachment T13, page 44.

7.Pursuant to s 16 of the SRC Act, the respondent accepted liability for that specialist appointment and a subsequent right hip injection recommended by Dr Munt. Then by letter dated 2 January 2020 from Dr Munt, the applicant requested approval of surgery for a right total hip replacement.

8.The respondent obtained an independent medical examination (IME) and a report from Consultant Orthopaedic Surgeon, Associate Professor (AP) Steadman to whom the applicant had previously been referred by the respondent during the course of the first claim. In his report dated 25 February 2020, AP Steadman opined that the applicant suffered from right hip pain due to osteoarthritis which was not caused, aggravated, or accelerated by the applicant’s fall on 5 July 2016. Nor did the fall cause a recurrence of a pre-existing degenerative disease of the hip.

9.The respondent denied liability for the right total hip replacement. The applicant by letter dated 3 April 2020 sought reconsideration of that rejection.[4] By letter dated 14 April 2020[5], the respondent advised the applicant that in accordance with s 62 of the SRC Act, the determination to reject the claim for right total hip replacement was affirmed.

[4] Exhibit A, attachment T20, pages 87-88.

[5] Exhibit A, attachment T21, pages 89-91.

10.An application for review of the reconsideration was filed in the Tribunal by the applicant on 4 July 2021 and is now before the Tribunal. At the hearing, the applicant was represented by Simon Blewett of Selby Street Chambers and the respondent was represented by Ann McMahon of Greens List Barristers. The Tribunal received documentary evidence as listed in the exhibit list, held on the Tribunal file. During the hearing, the applicant gave evidence. The Tribunal also received expert reports and oral evidence from AP Roger Steadman, AP Tony Pohl, orthopaedic surgeon Dr Justin Munt, and orthopaedic surgeon Dr Tony Menz. It is necessary to consider the evidence about the aetiology of the arthritis of the right hip including the medical evidence to first determine whether the applicant suffered an aggravation or acceleration of his pre-existing arthritis of his right hip on 5 July 2016.

ISSUES

11.It is accepted that the applicant suffered from pre-existing osteoarthritis of the right hip at the time of his injury on 5 July 2016 prior to which date the condition was asymptomatic.

12.The applicant in his Statement of Facts Issues and Contentions correctly outlined the issues as follows:

1. Whether, pursuant to s 16 of the Safety, Rehabilitation and Compensation act 1988 (the Act), the respondent is liable to pay compensation to the applicant in respect of the costs associated with total right hip replacement surgery and in particular:

1.1.whether the applicant sustained an injury in the nature of an aggravation of pre-existing arthritis of the right hip on 5 July 2016;

1.2.if so, whether that injury arose out of or in the course of his employment with the respondent;

1.3.if so, whether the proposed total right hip replacement surgery is in relation to that injury; and

1.4.if so, whether the proposed total right hip replacement surgery constitutes reasonable treatment for the applicant to obtain.

THE APPLICANT’S EVIDENCE

Statement dated 27 June 2021 and oral evidence

1. The applicant provided a statement dated 27 June 2021. He said he left school aged fifteen years and had a number of jobs. He has worked as a linehaul interstate truck driver with the respondent since about 2004 to date. He presently works 60 hours a week.

2. On the day of his fall, he drove a Scania truck from Melbourne to Adelaide and return. While driving from Melbourne to Adelaide, he had pain in both his hips. He experienced the same pain on the return journey to Melbourne. Upon his arrival in Melbourne, he went to the canteen, had a meal, and thereafter he disconnected the trailer on the truck and drove the Scania truck to the back of the workshop. He exited the truck stepping down the steps and holding the rails, lost his footing and fell towards his right, landing heavily on his right hip and right shoulder with his arms outstretched. In his statement, he estimated he fell from a height of 5 feet. This was the first occasion the applicant estimated a height from which he fell.

3. The applicant said he felt pain to his right shoulder and lower back/hip. He felt stiff and sore and had a shower. The next morning, he was still stiff and sore. He reported the incident to his boss, and he was seen by the company doctor. He had an X-ray of his shoulder, was given the “all clear”, and drove a different truck back to Adelaide. Upon arrival in Adelaide, he said his pain was greater in his right shoulder and right hip. The hip pain extended to his right groin and buttock.

4. He saw the company doctor in Adelaide and was referred to a physiotherapist, but the treatment made both his shoulder and hip pain worse. His first claim for compensation was rejected. He said his right hip ached with pain on the outside of his hip radiating down his leg and into his right groin and buttock, but this did not affect his ability to drive. He used cruise control. However, his right hip pain has increased, caused difficulty walking and restricted his ability to be active.

5. The applicant said that prior to driving the Scania truck he had no pain or discomfort in his right hip.

6. Following the acceptance of his claim, Dr Munt arranged an injection into his right hip but the pain relief lasted 24 hours. It was recommended he have a right hip replacement, but the respondent rejected that claim. The applicant decided to proceed with a right shoulder surgery which he said was reasonably successful. Since that surgery in June 2020, he has had a number of workplace restrictions.

7. The applicant said that prior to his injury he was very active. He worked around the house, did building maintenance and renovations and he and his wife had an exercise routine walking 5 kilometres two to three times on weekends. He often went fishing and was active with his grandchildren.

8. Since the injury he initially suffered pain after walking 500 metres, but it is now worse and he will be in pain after walking 200 metres to 300 metres. He has difficulty gardening, mowing lawns and working on his hands and knees. He will sometimes limp particularly during or after being active. He now pays someone to mow the lawn. His pain will increase with activities such as washing the car. He tries to remain active, albeit those activities increase right hip pain. He paces himself. He no longer goes fishing because the rocking boat impacts upon his right hip. He has right hip pain and stiffness in the morning affecting his ability to dress himself. He has difficulty self-grooming, showering, shopping, and sleeping.

9. The applicant said that since his injury on 5 July 2016, his weight slowly increased over time. He detailed his weight as recorded by Corporate Health Group as part of his health assessment for drivers together with assessments with My Clinic in Victoria, and Associate Professor (AP) Steadman and Dr Lucas as follows:

   “April 2004, 105kg; March 2011, 111kg; March 2013, 116kg; March 2014 and 2015, 117 kg; February 2016, 120kg; October 2016, 120kg; February 2017, 110kg; July 2017 119.8kg, February 2018, 120kg; February 2019 124kg; January 2020, 123kg; February 2020, 122kg and June 2020, 132kg. The last weight was following his shoulder surgery in June 2020. He said his current weight is about 124kg.”

10. The applicant said he was concerned about his current weight. He is trying to reduce his weight, but exercise is limited due to long work hours and his right hip pain. He has changed his diet by not purchasing as much food at the roadhouse.

11. In cross-examination, the applicant agreed that after his fall he had continued to work 60 or 70 hours a week. In terms of the fall, he said he landed on his right hip and shoulder, but he could not otherwise detail the mechanism of that fall.

12. The applicant was referred to his consultation with his employer’s doctor the day after the fall and that he reported shoulder pain but no hip pain. He maintained he reported hip pain to the doctor. He agreed that he saw Dr Selvadurai seven days after he returned to Adelaide and complained of right hip and shoulder pain. Dr Selvadurai diagnosed trochanteric bursitis of the right hip. The medical notes record right lateral hip pain, but not groin pain. The applicant could not remember if that is what he told the doctor.

13. The applicant was also referred to the medical notes of Medilaw[6] which relate to four consultations between 2016 and 2020.  The first of those notes is undated but the applicant’s age is 56 years, which if correct is in 2016. His weight is 120kg.

    [6] Exhibit L.

14. The notes of each consultation include two figures (front and back) of a person on which it was marked where he was in pain. The figures show lateral right hip and right shoulder pain. There is no indication of groin pain.

15. The applicant was referred to his first consultation with AP Steadman on 5 October 2016 as detailed in his report dated 19 October 2016.[7] AP Steadman took a history from the applicant, but the applicant could not recall the history he gave and therefore could not comment on AP Steadman’s notes including that he had pain on the outside of the hip. The applicant said he always had pain on the outside of the hip, but he said that the pain was also in the lower back and into the groin. He said, “on the outside of the hip was the majority of the pain” and that he had some pain around the buttocks to the groin depending on how much he was doing. He maintained that he told his treating general practitioner Dr Taylor and also Dr Selvadurai of groin pain. He said that pain remained and got slightly worse over time.

    [7] Exhibit A, pages 65 – 74.

16. The Tribunal referred the applicant to AP Steadman’s notes of the clinical examination which said his hip range of motion, although full, causes him some discomfort on the outside, and that the applicant complained of pain mostly around the groin and the anterior aspect of the hip. The applicant could not remember what he told AP Steadman about the symptoms following that clinical examination.

17. The applicant was also referred to his consultation with Dr Munt approximately two years after the accident in which Dr Munt reports that on 10 May 2018[8], the applicant complained of ongoing pain in the lateral aspect of his hip, that is the outside aspect of his right hip. The applicant agreed he made that complaint, but he could not recall whether or not he mentioned pain in the groin.[9]

    [8] Exhibit H, tab 2.

    [9] Exhibit H, tab 2.

18. The applicant said that his areas of pain were the same post the accident and gradually worsened over time. But when referred to the medical notes including in 2018 and the absence of any reference to groin pain, the applicant said it should be recorded.

19. It was suggested to the applicant that insofar as he told AP Pohl when asked about his weight, that he had a marked weight gain from 105kg to 108kg to a recent weight of 120kg, that weight history was untrue. The applicant said he was a certain weight and had a slow weight gain. He conceded however that prior to his fall, his weight was of about 120kg.

20. The applicant agreed that he had worked full normal hours following his fall to date save for time off to have shoulder surgery. He was self-administering Panadol and osteo tablets.

21. The applicant agreed that he told AP Pohl that he built houses and still did so after the fall but had to pay for tradesmen. Building new houses is something he had done for most of his life. He would live in them for up to 3 years and then sell and build another one. The applicant would lay and float his own concrete, but his ability to float concrete diminished after the fall. He would only do small jobs such as paths or garden edges which caused pain.

    THE MEDICAL EVIDENCE

    The diagnosis of osteoarthritis of the right hip joint  

22. In considering the aetiology of the applicant’s right hip osteoarthritis, it is necessary to consider the applicant’s right hip condition dating from the work accident on 5 July 2016 to date and the medical evidence in relation to the condition. The applicant saw several medical practitioners over the relevant period of time. We will deal with each in turn.

    Dr Mrozinski consultation 6 July 2016

23. The applicant first medical consultation following the injury was on 6 July 2016 with Dr Mrozinski, the respondent’s doctor, at which there was no mention by the applicant of any right hip related problem. The focus of the consultation was on the applicant’s right shoulder.[10]

    Dr Selvadurai Report dated 17 September 2017

    [10] Exhibit A, attachment T7, page 30.

    Consultation 14 July 2016

24. The applicant’s next medical consultation was with general practitioner Dr Selvadurai on 14 July 2016 who thereafter saw the applicant on a number of occasions including in August 2017. The Tribunal received one report from Dr Selvadurai’s dated 27 September 2017 which was a response to various questions asked of him by the applicant’s solicitor. The Tribunal did not receive a copy of that solicitor letter. 

25. In respect of the 14 July 2016 consultation, Dr Selvadurai reported[11] that the applicant hurt his shoulder and hip, and “stated his low back was sore from the truck seat.” He opined the applicant had signs of impingement of his right shoulder and also trochanteric bursitis in his right hip. The applicant was continuing to perform his normal work duties.

    [11] See report dated 27 September 2017 pages 36 – 37.

26. The applicant saw Dr Selvadurai briefly on 3 August 2017 shortly prior to the date of the report. In respect of that consultation, Dr Selvadurai reported in answer to question 2 that the applicant had been seeing his local doctor. In relation to his right hip, he opined that the right hip imaging showed signs of degenerative changes that had been aggravated by the fall and that clinically he had signs of a bursitis. However, Dr Selvadurai provided no information as to the mechanism by which the applicant’s pre-existing hip condition had been aggravated by the fall. He reported that there were no injuries reported prior to the fall. This statement was speculative and not otherwise linked to any factual subjective observation with regards the applicant’s right hip condition.

27. Dr Selvadurai recommended surgical opinion be obtained.

28. The diagnosis of right hip trochanteric bursitis was repeated in various medical assessments. The diagnosis was based on consistent complaints by the applicant of pain localised to the lateral aspect of the right hip area. In cross-examination, it was put to the applicant that this diagnosis was confirmed on 28 July 2016 in a physiotherapist’s assessment who documented that the applicant complained of “right lateral hip pain”, and that the hip was of “minor concern” and that the right shoulder was “the main issue”. The applicant could not recall this consultation and his report of pain.[12]

    Associate Professor Steadman Consultant Orthopaedic Surgeon

    [12] Exhibit G practice records of Dr Selvadurai – handwritten records of physiotherapist (page 325).

    Consultation 5 October 2016.

29. The applicant was referred to AP Steadman, Consultant Orthopaedic Surgeon who first examined the applicant on 5 October 2016. AP Steadman referred the applicant for Magnetic Resonance Imaging (MRI) of the right hip and right shoulder which was performed on 11 October 2016 by Dr Jones and Partners with a report from Dr Zadow of same date.[13] Under heading “Conclusion”, Dr Zadow reported in respect of the hip:

    “Undisplaced labral tear with cysts and early OA (osteoarthritis), potentially on a background of FAI (femoroacetabular impingement). No effusion or synovitis. No marrow oedema. Mild gluteal tendinosis at the greater trochanter with a tiny shift in the posterior aspect of the gluteus minimus tendon, but no major tear and no significant trochanteric bursitis. Mild low-grade hamstring origin tendinitis.”

    [13] Exhibit A, attachment T18, pages 63-64.

    Report dated 19 October 2016

30. AP Steadman then provided a report dated 19 October 2016.[14] He reported that the applicant was 174.5cm in height and weighed 120kg. On examination he walked normally. “He is slightly Trendelenburg positive on the right but his hip range of motion, although full, causes him some discomfort on the outside. He is complaining of pain mostly around the groin and the interior aspect of the hip rather than the buttock, which sometimes comes from the spine.” He had some tenderness of his greater trochanter.

    [14] Exhibit A, attachment T18, pages 65-74, at page 67.

1. AP Steadman summarised the right hip MRI as follows at page 68:

   “Undisplaced labral tears, cyst and early hip arthritis are noted in the right hip joint. These do not represent injury related in context with the findings. Low-grade hamstring tendinosis is noted along with some mild gluteal tendinosis and this probably represents the injury related condition. Treatment will be conservative with some physiotherapy.”

2. Under heading “Summary”, AP Steadman opined that the applicant “had some minor soft tissue injuries affecting the hamstring and gluteal tendons of the right hip.”  In answer to a question “do you consider Mr Saunders condition would have arisen in the absence of his employment with K and S Freighters?” he answered, “Based upon the investigations, he has elements of degenerative disease and may have suffer[ed] from some symptoms in the future.”

   Consultation dated 17 January 2018 and Report dated 30 January 2018

3. The applicant saw AP Steadman on 17 January 2018 and a report was provided dated 30 January 2018.[15] The applicant reported that his right hip problems continue, he is sore intermittently and it niggles when driving but is not as bad as his right shoulder. He could walk 400 to 500 metres before his hip hurts. He had trouble sleeping on his right side.

   [15] Exhibit H, tab 3.

4. Under heading “Clinical Examination”, AP Steadman reported some tenderness of the greater trochanter and discomfort in twisting. The range of movement in both hips were equal. He reported that additional treatment was likely to be for the degenerative disease.

5. AP Steadman opined that the applicant remained incapacitated to some extent by the tenderness to the outside of the hip.

   Consultation dated 24 October 2018 and Report dated 30 October 2018

6. Following his examination on 24 October 2018, AP Steadman provided a report dated 30 October 2018.[16] At the time of the examination, the applicant’s weight was 122.7kg. The applicant still reported a sore right hip and that he had consulted Dr Munt who recommended an injection but if that did not work, he will need a hip replacement. He was at that time continuing to work for the respondent performing full time normal duties.

   [16] Exhibit H, tab 4.

7. The applicant reported that his weight had increased from 106kg to 122kg. The Tribunal notes that the records of the applicant’s weight from the date of the fall were consistently that he weighed of or about 120kg.  The applicant complained that the hip condition had worsened, and he could only walk 300 metres before suffering debilitating groin pain and he has to stop walking.

8. AP Steadman reported under heading “Clinical Examination”:

   “On examination there has been no obvious change. The right hip still has some very mild greater trochanteric tenderness, but he has some palpable gluteal wasting. He is Trendelenburg positive and his hip is more painful to twist and rotate, indicating progression of arthritis, much along the lines of the opinion of Dr Munt. Flexion in the right hip is slightly reduced compared to the left but abduction, adduction and internal and external rotation, although causing pain, do not have much restricted motion. He can forward flex to his ankles and extend and laterally flex 60 degrees but is not in a lot of back pain. He just gets pain around the right groin.”

9. Under heading “Summary” AP Steadman reported as follows:

   “I accept he has degeneration and that it may be symptomatic and may also have been aggravated by a fall, but would conclude any additional treatment would be for degenerative conditions that predate his injury, but have become the [sic] absorbed within the wider WPHS seat issue.”

10. In answer to the question “Please comment on the report of Dr Munt as to the areas of agreement and disagreement”[17], he answered:

    “I would agree surgery may be required and the fall may be the significant event that has aggravated his degenerative disease. I would consider a greater portion of what he is complaining of is degenerative disease rather than as a result of the fall, but I would also consider there were issues in relation to the fall.”

    [17] AP Steadman received the report of Dr Munt dated 7 August 2018.

11. AP Steadman clarified his opinion and the relationship between the osteoarthritis and the fall in his subsequent reports and when giving evidence to which we will refer later.

    Consultation and Report dated 25 February 2020

12. AP Steadman conducted an examination on 25 February 2020 and provided a report of same date including answers to specific questions.[18] The applicant advised that he had seen Dr Munt who had arranged an injection into his hip which relieved his symptoms for 24 to 48 hours and Dr Munt has decided he should have a hip replacement.

    [18] Exhibit A, attachment T18, pages 50-57.

13. At the time of the consultation, the applicant’s weight was 122kg. The applicant said he had previously reached 128kg.

14. AP Steadman said that on examination, the applicant presented the same as when previously seen. The hip revealed “very slight gluteal trochanteric tenderness.” His range of hip movement was the same as before, but some pain reported with internal flexion and rotation. It was too difficult to detect gluteal wasting because of his weight but the applicant did not seem to be in a lot of pain.

15. Under heading “Summary”, AP Steadman reports the applicant had a painful right hip gradually building for some time. He opined that the symptoms have gradually worsened and said, “Hip replacement is a pain-relieving procedure and therefore the indications are poor sleep, analgesia and reduced walking activity, all of which he qualifies with.”

16. AP Steadman reported the case summary was the same and that there had been gradual deterioration since the original injury. The applicant “suffers right hip pain. This is now due to osteoarthritis which had always been present in lesser degrees from the start and was due to non-injury related findings because the initial MRIs have not shown any specific features consistent with injury.”

17. He further opined that he did not consider that the fall caused the arthritis in his right hip to be aggravated, accelerated, or caused a recurrence of a pre-existing degenerative disease. His clinical symptoms have been continuous since his fall and underlined by the fact that he has right hip arthritis and so therefore the pain would be consistent, as in the clinical examination. He further opined that the osteoarthritis has deteriorated and is causing more pain now giving rise to the trial of an injection and the opinion now expressed, is that hip replacement will be the appropriate treatment.

18. AP Steadman also opined that he was in no doubt that the applicant’s condition would have arisen in the absence of his employment with the respondent. He reported “due to age, weight, and poor fitness, his hip was always going to become arthritic…The indication for the hip replacement is due to constitutional arthritis and I am not of the opinion that the fall has aggravated, accelerated or cause a recurrence of pre-existing degenerative disease of the hip in that it represents a diseased based process”. He opined that weight loss will be an important factor in the applicant’s care.

    Report dated 14 October 2021

19. AP Steadman received a letter from the respondent’s solicitor dated 8 October 2021 asking for a review of various documents including reports from Dr Munt and his records, Occupational Physician Dr Lucas, Consultant Orthopaedic Surgeon Associate Professor Pohl, Consultant Orthopaedic Surgeon Dr Menz, various X-Rays, Ultrasound and MRI, and the applicant’s statement dated 26 June 2021. He then provided a report in answer to a number of questions.[19]

    [19] Exhibit E.

20. AP Steadman noted that the applicant in his statement dated 27 June 2021 provided “a more detailed description of the actual injury” than when he first examined him including the manner in which he landed on the ground and that he fell from an estimated distance of 5 feet. He also stated that his weight had been progressively rising with a maximum of 132kg in 2020.

21. AP Steadman reported his diagnosis was osteoarthritis of the right hip. He said:

    “it is mild and represents consequence of the associated femoroacetabular impingement and degenerative labral pathology all of which are part and parcel of a constitutional condition. This has not changed since the first MRI which I performed shortly after the injury when the chronic features of that condition were present on the MRI. All the recent radiological investigations have just shown that there is mild progressive degeneration.”

22. AP Steadman referred to the difference in opinion between Dr Menz and Dr Munt with regard to the need for hip replacement. He opined, “there may be a combination of nonphysical factors and weight which are contributing to his presentation, many of which if they were addressed would see improved function from his underlying condition and likely see significant hip pain resolution.”

23. He maintained his previous opinion that “there was no relationship between the fall in the recent request for right hip replacement surgery.”

    Evidence of AP Steadman

24. AP Steadman confirmed he first saw the applicant approximately three months after his fall at which time he ordered the MRI for both his shoulder and hip. He confirmed upon examination of the right hip there was some tenderness of the applicant’s greater trochanter which he described as the hip bone one can feel on the outside of the hip.

25. AP Steadman then confirmed the Trendelenburg test was performed, which is a test to determine the function of the hip abductor and gluteal muscles. It is performed by requiring the patient to stand on one leg and observing their reaction including maintaining balance. He said the applicant was slightly Trendelenburg positive which meant he had some trouble standing and supporting himself on one leg. From that, it was concluded that there was something going on with his hip.

26. The applicant range of movement was full, with some discomfort on the outside of the hip consistent with tenderness of the greater trochanter. He complained of pain both around the groin under manipulation together with the anterior aspect of the hip rather than the buttock. The pain around the groin was inconclusive because bursitis will cause pain with movements of the hip as well.

27. Counsel for the respondent referred AP Steadman to the 11 October 2016 MRI. He said it showed some thinning of the space in the ball-and-socket of the hip joint consistent with early osteoarthritis. The MRI also identified femoroacetabular impingement and labrum tears with some cysts. However, there was no swelling inside the ball-and-socket joint and no synovitis.

28. AP Steadman explained that the MRI showed no sign of any reactive change from an injury. He said the MRI “shows that the hip joint itself doesn’t have any tears in it, like swelling or fluid, that indicates there was an injury, but there’s some changes on the outside where I pushed that are consistent with his gluteal tendinosis/trochanteric bursitis.”

29. When AP Steadman saw the applicant in January 2018 and provided a report dated 30 January 2018, the applicant still had tenderness of the greater trochanter. He manipulated the applicant’s ball-and-socket joint to try and provoke some irritation and on this occasion, there was now some hip joint pain, however, tenderness remained on the outside of the trochanter. There was no loss of range of motion.

30. When AP Steadman examined the applicant in October 2018 and provided the report of 30 October 2018, there was a slight reduction in range of motion in the right hip. He explained that the first consultation there was tenderness on the outside of the hip with the hip examination normal. The second examination there was slight difference in the features and that he had some pain with flexion and twisting. By the October 2018 consultation, he started to see the next part of the evolutional of the hip with a slight reduction in range of motion. He described this as part of the clinical journey of the evolving problem in the hip.

31. At the third consultation there was still mild greater trochanter tenderness with some gluteal (buttock muscle) wasting. When performing the Trendelenburg test, the applicant could not stand on one leg.

32. Hence, AP Steadman opined that by the third consultation the applicant was now having a problem with the inside of the hip and since October 2018, the hip condition has not dramatically worsened.

33. AP Steadman had before him the second and most recent MRI dated 27 September 2019 and was asked to explain if there are any changes and if so, what, between the first and second MRI. He said there was no change to any great extent. There was a bit more inflammation and a bit more tearing including the labral tear. There was no synovitis (joint inflammation) or effusion (collection of fluid) in the hip. He said “The hips largely look the same. It just looks more like his greater trochanter pathology is sort of progressing, but not dramatically progressing.”

34. In answer to questions from the Tribunal, AP Steadman said that in respect of the 2016 MRI there were no reactive changes, no evidence of synovitis and no effusion in the hip joint. The MRI told him there was nothing acute going on. If there had been some impact that occurred to the hip, consequent upon the fall, depending upon the severity of that fall, AP Steadman said he would still see some changes. He explained that if the applicant fell onto his hip and gave the hip socket a nasty bang, he would still expect to see on the MRI some residual oedema (swelling caused by excess fluid) changes, in particular bone oedema. He said “… if the hip joint itself had been injured three months before, that there should still have been some changes in the hip joint from that, because he was complaining of pain.”

35. AP Steadman opined that the labral tears and cysts observed on the 2016 MRI predated the applicant’s fall.

36. In cross-examination, AP Steadman accepted that the symptomatic indicators identified by the applicant qualify him for a hip replacement. He accepted that it was the appropriate treatment. He accepts that given the applicant had 24 to 48 hours of relief following the injection administered by Dr Munt, that it confirmed the applicant had hip pain which also supported the applicant having a hip replacement.

37. AP Steadman agreed that osteoarthritis, femoroacetabular impingement, labral tearing and degenerative change are interconnected and separate to the trochanteric bursitis. He agreed the MRI showed that at the time of the fall, the applicant had some pre-existing degenerative changes in the hip. There was no worsening of that degenerative change by the fall. He nonetheless agreed that the applicant was asymptomatic prior to the fall and remained symptomatic thereafter.

38. However, AP Steadman said because of the absence of synovitis (swelling) and the observations of the hip on the first MRI, the presence of groin pain upon manipulation in October 2016 does not mean that there was hip dysfunction, or that he remained symptomatic because of hip degeneration. Insofar as he said in his report dated 19 October 2016 “Based upon the investigations he has elements of degenerative disease”, AP Steadman said that it was consistent with the MRI. He had thinning of the cartilage and some labral pathology and that having regard to the degenerative change, he then opined that in the future he may suffer from symptoms, which has now been fulfilled. He said it did not show an actual hip joint injury. It showed he had soft tissue injury on the side of his hip.

39. AP Steadman said that he did not accept that the fall aggravated his hip condition, that he has had ongoing pain, but over the passage of time, his condition has gradually changed. He did not agree with the proposition that the fall was likely to be a significant event that aggravated the degenerative hip disease having regard to the MRI. He accepts that the applicant now suffers pain from osteoarthritis but having regard to his clinical examination and the MRI that was not the case following the fall.

40. AP Steadman agreed that the applicant’s original pain was from his trochanteric bursitis as he and the applicant’s treating general practitioner originally diagnosed. The fact that in October 2016 there was a complaint of groin pain on examination and manipulation was of little moment. He had soft tissue injury on the outside of the hip, and everything will hurt with that movement in examination. The MRI showed some inflammation of the gluteal tendons and inflammation of the hamstring tendons which will all contribute to the pain.

41. He said at the beginning that pain was due to trochanteric bursitis or changes on the outside of the hip consequent upon the fall which was proven by the MRI. The clinical examination did not support a finding of any pathology inside the hip, but as time progressed and as he predicted in his original report his hip condition got worse. This was a progression of his hip disease unrelated to the fall.

    Dr Lucas Consultant Occupational Physician

    Consultation 27 July 2017 and Report dated 10 August 2017

42. Dr Lucas, Consultant Occupational Physician provided a report dated 10 August 2017 following an examination on 27 July 2017.[20] The applicant reported a right hip discomfort that had increased since the relevant incident. He was restricted in walking and gardening. His weight was 119.8 kg. His right hip examination indicated mild discomfort with full internal and external rotation. He was able to heel raise, toe raise and full squat. There was no gross muscle wasting and no neurological symptoms or signs.

    [20] Exhibit A, attachment T18, pages 75-83.

43. Dr Lucas received the MRI report of 11 October 2016. He reported the MRI findings were reassuring from an injury perspective and that indications of significant new injury findings appear limited. He noted the applicant had returned to his usual work hours and duties.

    Dr Munt Orthopaedic Surgeon

    Consultation and Letter to Dr Taylor from Dr Munt dated 10 May 2018[21]

    [21] Exhibit H.

44. The applicant first consulted Dr Munt on 10 May 2018 on referral from the applicant’s treating general practitioner Dr Taylor. In a letter to Dr Taylor of same date,[22] Dr Munt wrote that the applicant had ongoing pain in the lateral aspect of his right hip and that he has a constant ache and cannot walk more than 500 metres without pain. His right hip was “tender over the trochanteric region, but it was irritable throughout a range of motion and restriction in his internal rotation.”

    [22] Exhibit H, tab 2.

45. Dr Munt organised an ultrasound guided steroid injection into his trochanteric bursa. A further consult was arranged in six weeks.

    Report dated 7 August 2018 [23]

    [23] Exhibit H, tab 2.

46. Dr Munt’s report was to the applicant’s solicitor in response to a number of questions. He reported that in relation to his hip, the applicant had some evidence on his MRI of labral tearing and early degenerative change but otherwise his muscles and trochanteric bursa were unremarkable. He had 5/5 power on examination of his muscles. There was pain with flexion, abduction, and internal rotation which he opined may be symptomatic of his labral tearing and early degenerative change.

47. The applicant reported no symptoms prior to his fall at work. Dr Munt opined that it was most likely the applicant had some pre-existing degenerative change in his hip and his AC joint prior to the fall which flared up as a consequence of that fall. He opined that the majority of symptoms could be attributed to the fall which was an exacerbation of previous asymptomatic issues. He also opined that the fall was a significant contributing cause of his current symptomatic presentation.

48. Dr Munt said he organised cortisone injections but did not see the applicant again for follow-up as no further appointments were made. He could not report on any anticipated future treatment as he did not see the applicant in response to the injection. His only examination was 10 May 2018. He opined that given the hip degeneration, he may require hip replacement surgery in the future which he estimated to be within five – 15 years.

    Consultation and Letter to Dr Taylor from Dr Munt dated 15 August 2019[24]

    [24] Exhibit H, tab 2.

1. This letter was written following a consultation of the same date. The applicant reported continuing issues with his right hip. “His right hip was initially giving him pain mainly in the lateral aspect but now he is getting significant groin pain. It does not limit his ability to drive his truck at work but some of his other activities where he is doing any lifting or transferring does bother him…..On examination… he had some tenderness around his trochanteric region of his hip but had 5/5 power of hip adduction and hip flexion. He had some restriction in hip flexion and painful adduction internal rotation.” Dr Munt organised a repeat x-ray.

   Report dated 15 August 2019[25]

   [25] Exhibit H, tab 2.

2. Dr Munt provided this report to the applicant’s solicitor. He reported the applicant “continues to get pain on the lateral aspect of his hip which runs down the lateral aspect of his leg.” Since his last consultation, Dr Munt reported the applicant “developed increasing pain along his groin also in relation to his right hip.”

3. He also “had tenderness along his trochanteric bursa but reasonable 5/5 power of his abductors. This would be consistent with a degenerative process affecting his hip as well as an element of trochanteric bursitis.” He opined that if the applicant remains symptomatic and x-rays or MRI scan show degenerative change, then hip replacement surgery will be an option.

   Letter to Dr Taylor from Dr Munt dated 29 August 2019[26]

   [26] Exhibit H, tab 2.

4. Dr Munt wrote to Dr Taylor that the applicant continued to be bothered with right shoulder and groin pain. Recent X-rays demonstrated degenerative changes in the right hip. He said the applicant would benefit from an MRI scan to delineate any osteoarthritic change.

   Letter to Dr Taylor from Dr Munt dated 12 December 2019[27]

   [27] Exhibit H, tab 2.

5. Dr Munt wrote to Dr Selvadurai and said, “As you know from his previous MRI scan he had a significant labral tear and delamination of his cartilage as well as evidence of degeneration.” It is not clear whether Dr Munt was there referring to the MRI in 2016 and shortly after the injury, or whether it was a more recent MRI as suggested in his letter dated 29 August 2019 to Dr Taylor. Nonetheless he booked the applicant into hospital for hip replacement surgery on 30 December 2019.

   X-ray Report to Dr Munt dated 22 August 2019 and MRI Report to Dr Munt dated 27 September 2019 by Jones and Partners[28]

   The X-ray report included the following:

   “An MRI scan of the right hip demonstrated labral tears and osteoarthritis. Both femoral heads remain smooth and no obvious subchondral bone cysts. The sacroiliac joints were normal and there was mild degenerative change within the pubic symphysis.”

   Under heading “Conclusion” the author reports:

   “Chronic partial tears subscapularis and supraspinatus tendon. Acute on chronic subacromial-subdeltoid bursitis with associated stubligamentous bursal entrapment Acromioclavicular joint osteoarthritis. Minimal bilateral hip joint osteoarthritis”

   The MRI report under heading “Conclusion” says:

   “Mild generalised chondral thinning femoral head and acetabulum. Degenerative, full thickness chondrolabral junction tear extending from the 12 o’clock to the 3 o’clock position with small paralabral cyst formation however no paralabral synovitis. Mild, chronic hamstring origin tendinosis. Mild gluteus minimus tendinosis with fraying.”

   [28] Exhibit H, tab 2

   Evidence of Dr Munt

6. Dr Munt said that he first saw the applicant in May 2018 about two years after the fall, and then again in August 2019. He acknowledged that the two MRI scans demonstrate a progression in the applicant’s labral tear over time.

7. Dr Munt said that any fall of the type experienced by the applicant be it from a standing position or higher will result in direct impact to the hip joint which can cause damage to the cartilage. He said it would be difficult to assess the damage without before and after vision of the hip.

8. Dr Munt confirmed that the applicant’s treating medical practitioners referred to the applicant being tender over the lateral side of his right hip and suffered bursitis to that hip. In August 2019, the applicant complained of pain running down the lateral aspect of his hip and now reported increasing pain along his groin which was indicative of osteoarthritis. Osteoarthritis he said was a progressive condition. This was the first time the applicant complained of groin pain.

9. Dr Munt said that the applicant still had tenderness in the area of his trochanteric bursitis which condition coexisted with his osteoarthritis and tenderness observed by AP Pohl in the gluteus minimus and medius muscles of the hip. All of those conditions he said presented together. He agreed that on the plain x-rays, the applicant did not have much arthritis in his hip joint.

10. When asked whether or not the fall aggravated specifically the osteoarthritis as opposed to the other conditions, Dr Munt said, “the only thing I have to go on is that he said he was asymptomatic from his hip prior to the fall.”

    Associate Professor Pohl Consultant Orthopaedic Surgeon

    Consultation dated 8 July 2020 and Report dated 22 July 2020

11. This report was following a consultation on 8 July 2020. The applicant provided a consistent history of the injury and its consequence. AP Pohl did not receive a copy of the first MRI but he did receive a copy of AP Steadman’s report dated 19 October 2016, Dr Lucas’ report dated 10 August 2017, and a letter of Dr Selvadurai dated 27 September 2017.

12. The applicant referred to his right hip pain in the right trochanter with radiation towards his right groin and right buttock area. The pain was aggravated by walking more than 200 metres, mowing lawns or working on his hands and knees floating concrete. The applicant described difficulty putting shoes and socks on and dressing. His work was restricted in that he no longer loaded or unloaded vehicles.

13. The applicant reported he still built houses but now engaged paid tradesmen. He had not gone fishing for some time because the rocking boat could be “hard on the hips”.

14. The applicant reported that his general health had previously been good, but he suffered marked weight gain from a previous level of 105-108kg up to 125kg. The Tribunal notes that in the report of AP Steadman dated 19 October 2016,[29] he was 120kg in weight and the applicant’s statement detailing his weight is contrary to the weight history given to AP Pohl.

    [29] Exhibit A, attachment T18, page 67.

15. In answer to a series of questions, AP Pohl opined that the applicant had been diagnosed with right hip trochanteric bursitis. The MRI dated 11 October 2016 reportedly showed undisplaced lateral tears and early osteoarthritis potentially on the background of femoroacetabular impingement; mild gluteal tendonitis and a small cyst and low-grade hamstring origin tendinosis. He opined that the pre-existing mild right hip osteoarthritis was asymptomatic but rendered symptomatic from the time of the accident. He opined that “by definition”, he suffered an aggravation of his underlying pre-existing condition of osteoarthritis.

16. Further, he opined that the aggravation of the underlying osteoarthritis arose out of or in the course of his employment and likely aggravated further by excessive weight gain attributed to his limited walking and an ability to exercise. AP Pohl reported, “His current condition relates to an aggravation of his pre-existent right hip osteoarthritis, for which surgery has been recommended and that which would primarily address pain related to the arthritis. He suffered a marked weight gain secondary to his limited walking distance and inability to exercise, which is likely to have aggravated his pre-existing osteoarthritis. He has, however, also had symptoms related to his greater trochanter, that have previously been ascribed to trochanteric bursitis.”

17. AP Pohl opined that the applicant’s total hip replacement related to his initial compensable condition in which he suffered an aggravation of his pre-existent osteoarthritis, and that the time for the hip-replacement was likely brought forward, namely that it shortened the likely timeframe for the total hip replacement “that could be expected of a symptomatic early right hip osteoarthritis.”

    Report dated 9 April 2021

18. This report was sought by the applicant’s solicitor in response to IMEs and reports of Dr Menz dated 15 November 2020 and 12 January 2021. AP Pohl said that he and Dr Menz largely agree. Having noted the findings of the MRI scan in October 2016, it showed undisplaced labral tears and early osteoarthritis, potentially on a background of femoroacetabular impingement (FAI) which is the most likely source of the labral tearing. He then explained, “that the cause relates to the size and position of the bony outgrowth that developed at the junction of the head and neck of Mr Saunders’ right hip and the resultant force and duration of impacts of the bony outgrowth on the acetabular labrum, due to hip movements associated with various physical activities”. AP Pohl referred to the hip movements and resultant force that can give rise to inflammatory changes and gradual degenerative changes in the hip joint. He referred to the applicant’s work activities as a truck driver as factors which could become causative of the condition over time. He agreed that the formation of the cyst around the labral tear would indicate that this is long-standing and predated the accident.

19. AP Pohl said the applicant’s reported weight gain was chronologically related to the workplace incident and not before the incident; and that he and Dr Menz agree that obesity would aggravate his pre-existing osteoarthritis.

20. AP Pohl agreed with Dr Menz that the applicant had moderate right hip osteoarthritic symptoms. However, unlike Dr Menz, he opined that the applicant “suffered an aggravation of his pre-existing osteoarthritis, chronologically related to the subject work-related incident, and from which he has not recovered.” AP Pohl rejected the proposition that the applicant’s ongoing symptoms are only related to his obesity.

    Evidence of AP Pohl

21. AP Pohl adhered to the opinions expressed in his reports. He confirmed he saw the applicant on one occasion namely 8 July 2020. He confirmed that the applicant suffered from three conditions namely right trochanteric bursitis, osteoarthritis and tendinosis.

22. AP Pohl said that there was a difference demonstrated between the two MRI scans which indicated progression of the applicant’s condition. He said that the first MRI identified that there was a pre-existent problem with the right hip with a deterioration from the first to second MRI. It was probable that the applicant had pre-existing osteoarthritis at the time of the injury.

23. AP Pohl acknowledged that he saw the applicant four years after the injury. He observed that the applicant suffered from fixed flexion deformity which could be consistent with worsening arthritis over that four-year period.

24. He acknowledged that “weight could impact on arthritis but once arthritis is there with the impingement and the delamination that could lead to inflammation of the joint” and “increased weight will increase the pain.” He accepted that increased weight could probably increase the deterioration of the osteoarthritis. He accepted that the formation of cysts around the labral tear observed in the first MRI was indicative of the conditions probably being present prior to the fall.

25. Counsel for the respondent referred AP Pohl to the evidence in relation to the applicant’s weight not increasing as the applicant’s history suggested. In accepting that proposition, AP Pohl said that increase in weight was not a contributing factor to his deterioration but that the weight that he had at the time would have been an aggravating factor to his arthritis.

26. Counsel for the applicant put to AP Pohl that on the basis of his conclusion of permanent aggravation of the osteoarthritis following the 2016 fall would one expect to see observable and recorded signs at the time of or after the injury that supported that conclusion. AP Pohl explained that the applicant was largely asymptomatic prior to the injury and thereafter was symptomatic. He said, “If that were a temporary phenomenon, I’d expect him to have got better. I was not given any evidence of him getting better to his pre-accident state.” His condition has continued and did not improve. AP Pohl therefore concluded that his condition was aggravated by the fall. He said he would otherwise expect the injury to resolve but there was no resolution of that injury. He said once a person has arthritis it will deteriorate. If those forces that may cause delamination from the labrum of the articular cartridge continue, they will aggravate and worsen the condition. He referred to various movements in his daily work activities which may have aggravated his condition.

27. The Tribunal asked AP Pohl if, given the first MRI was conducted three months after the fall, was there anything to indicate the degree of trauma caused by the fall and what was pre-existing. AP Pohl acknowledged difficulty in answering that question. He said that it was more likely than not that there was something there beforehand, but he could not say how much. He said the Tribunal was faced with the same problem that he faced looking at the evidence before him.

    Dr Menz Consultant Orthopaedic Surgeon

    Consultation dated 13 November 2020 and Report dated 25 November 2020

28. The applicant was referred to Dr Menz for an IME. The examination was on 13 November 2020 and a report was dated 25 November 2020.

29. In taking a history from the applicant, Dr Menz reported that following the incident the applicant received very little formal treatment but continued to complain of right shoulder and right hip pain. Dr Munt in May 2018 diagnosed trochanteric bursitis of the right hip and very little right groin pain. Groin pain is more consistent with hip joint pathology. Dr Menz noted that Dr Munt on several occasions said that the applicant’s complaints were of lateral hip pain and not groin pain.

30. Dr Menz referred to the MRI scan conducted on 11 October 2016 and the diagnosis. He reported, “I should point out that Mr Saunders has a BMI [Body Mass Index] of 38 which puts him in the obese range and is strongly associated with the development of arthritis in lower limb joints as well”.

31. At the time of the consultation the applicant described hip pain as laterally and in the groin. He could do the cooking, washing and drive his car but could not do any of the cleaning around the house. His walking distance was 350 metres and his sitting timeframe was about two hours.

32. Dr Menz summarised the MRI reports of 11 October 2016 and 27 September 2019 together with the right hip x-ray dated 22 August 2019. He then expressed his opinion relevant to a series of questions asked. He opined that the applicant had pre-existing early osteoarthritis and significant tear of the acetabular labrum associated with femoroacetabular impingement. He said, “There is a very strong relationship between femoroacetabular impingement, osteoarthritis of the hip and tearing of the acetabular labrum. The femoroacetabular lesion would have been present for many years, probably dating back to his teenage years, so certainly pre-existing the accident in question.”

33. Dr Menz reported that neither of the applicant’s lesions would be associated with the accident and predated the accident. He had mild osteoarthritis in his right hip and radiologically he did not have much arthritis in his hip joint and a hip replacement was not recommended. He opined that most symptoms are probably related to the acetabular labral tearing and has a very strong association with femoroacetabular impingement. He opined that surgery should be directed to repairing or resection of the acetabular labral tear.

34. Dr Menz opined that the accident would have caused some aggravation of his pre-existing degeneration of his hip but did not believe there was a connection between the applicant’s employment and the need for a hip replacement. He generally agreed with the opinions of AP Steadman.

    Report dated 12 January 2021

35. Dr Menz was asked to respond to Dr Pohl’s report dated 22 July 2020. There are aspects of the report with which he disagreed.

36. He confirmed his earlier opinion in respect of the 2016 MRI scan and the pre-existing femoroacetabular impingement which was most likely the source of the labral tearing and early hip osteoarthritis, and the cyst around the labral tear indicated this was a very long-standing and predated the accident.

37. He referred to Dr Pohl’s reference to the applicant putting on weight due to the lack of exercise. He did not agree that there was a correlation between the two. But he did agree with Dr Pohl that the applicant’s obesity would certainly aggravate his pre-existing osteoarthritis. He opined that the applicant remained obese, and this was a main reason he continues to have a symptomatic hip joint.

38. Further he opined that the applicant had minor osteoarthritis at the time of the incident and if he did aggravate his hip arthritis, it would have been for a limited time frame of 2 to 3 months only. The fact he has ongoing symptoms is related to his obesity which is aggravating the pre-existing osteoarthritis.

    Report dated 27 May 2021

39. Dr Menz was asked to report on Dr Pohl’s supplementary report dated 9 April 2021.

40. He opined that there would have been some aggravation of the applicant’s mild osteoarthritis after the fall which would have settled. He agreed with AP Pohl that the chronic changes seen on the MRI scan namely “the formation of cysts around the labral tear, that labral tear has been present for a long time and possibly for years……the labral tear is not associated with the fall from the truck.” He opined that the femoro-acetabular impingement was possibly present for many years and probably dates back to the applicant’s teenage years.

    Evidence of Dr Menz

41. Dr Menz said that both the labral tear and osteoarthritis are associated with the femoroacetabular impingement.[30]

    [30] Femoroacetabular impingement is when the femoral head (ball of the hip joint) pinches up against the acetabulum (cup of the hip joint) which can cause damage to the labrum (cartilage surrounding the acetabulum).

42. He opined that obesity would not only aggravate but can cause arthritis. Having regard to the second MRI, he said the applicant had moderate hip osteoarthritic symptoms. He confirmed that he disagreed with AP Pohl that the fall resulted in a permanent aggravation of the applicant’s underlying osteoarthritic condition and referred to Dr Munt in 2018 who noted the applicant complained of lateral hip pain and not groin pain at that time.

43. Dr Menz said in his clinical examination of 25 November 2020 the applicant had very good range of movement, walked with normal gait, did not appear to have much pain on examination and rated his pain as 4/10 on a good day and 8/10 on a bad day.  He complained that his hip pain was lateral which was not consistent with hip joint osteoarthritis pain. He did have restriction in flexion and abduction.

44. Dr Menz was not of the opinion that the applicant should have a hip replacement, particularly if the hip pain was from the trochanteric bursitis. He opined that the most significant pathology was the acetabular labral tearing because at the time of the first MRI there was very little cartilage degeneration of the hip joint. He said that he would need a hip replacement in the next 5 – 10 years. He opined that the appropriate procedure was the resection of the acetabular labrum; the hip arthritis he said was minimal. He did not see sufficient indication for a hip replacement.

45. Mr Menz agreed that the applicant had pre-existing change in the hip joint prior to the fall. The femoroacetabular impingement is not part of the osteoarthritic process, it is part of the cause of osteoarthritis in the hip. The labral tear and osteoarthritis both pre-existed the fall. Prior to the fall, the applicant was asymptomatic.

1. However, Dr Menz said he was not aware of the applicant falling from an approximate height of 5 feet as suggested in the applicant’s most recent statement. He accepted that the fall aggravated the mild pre-existing pathology but there was no evidence of new pathology. He opined that the ongoing symptoms related to the natural history of the osteoarthritis, but also his weight would easily aggravate his pre-existing osteoarthritic hip. He mainly suffered lateral hip symptoms following the fall. In the early stages, most of his symptoms were lateral and associated with trochanteric bursitis rather than the hip joint. He said, “But, the degree of arthritis in his hip joint in 2016 was minor. So, the degree of aggravation would be minor as well. And you can just say, if this man had a fall on a normal hip, he would have very few symptoms. He had a fall on a hip with minor arthritic signs causing minor symptoms which will be temporary. His ongoing symptoms appear to be laterally and trochanteric bursitis- related.”

2. Dr Menz accepted the applicant’s proposition that the fall did produce symptoms from a degenerative hip joint, but he said those symptoms were temporary. This is supported because the primary symptoms were the lateral aspects of the hip rather than the groin and anterior aspects of the hip. He was referred to AP Steadman’s diagnosis in the October 2016 report which referred to pain on the lateral side to the groin. He said that it could easily be trochanteric bursitis solely.

3. Dr Menz said that the applicant was demonstrating the natural history of slow but sure degeneration of the hip joint with osteoarthritis which started before the fall. The fall did not cause any new damage to the hip joint. Any symptoms following the fall were mostly related to the direct blow on his hip over the trochanteric bursa which did not cause any new deterioration of the arthritis in his hip. Insofar as the pain got worse over time, he opined that this was the development of the natural history of his arthritic hip joint. To the extent that there was any aggravation of his hip arthritis, it would have lasted 2 to 3 months.

4. Dr Menz also observed that there was never a complaint of pain referred down the thigh almost as far as the knee. If that were the case, then that would not be trochanteric bursal pain. He said most people who have hip joint pain complain of pain radiating down the anterior thigh into their knee, and that was not a symptom elicited in this matter.

   CONSIDERATION

5. There is a consensus between the medical practitioners that the applicant suffered from pre-existing osteoarthritis in his right hip together with labral tearing and cysts which preceded his fall. Although it could not be said with any accuracy, for how long the pre-existing condition had been present, it could have been present for some time and possibly back to his teenage years. Nonetheless, we are satisfied that the applicant suffered from pre-existing hip degeneration including osteoarthritis before the fall on 5 July 2016.

6. The applicant first noticed pain in his hips when driving a Scania truck from Melbourne to Adelaide and he had some functional difficulty with numbness in his legs and lost his footing and fell when disembarking from the truck. The applicant reported the fall to his employer and he then saw the employer’s doctor. His description of the manner in which he fell was very general, but he said he fell onto his right side with his right shoulder and hip hitting the ground. However, it was his right shoulder that caused the greatest discomfort and about which he initially complained when first consulting the employer’s medical practitioner. That medical practitioner gave him a clearance to continue working. He drove back to Adelaide but noticed increased pain in his right shoulder and hip.

7. It is relevant to note in his statement dated 27 June 2021 that the applicant said for the first time that he estimated he fell approximately five feet. That is a significant fall and given his weighed of approximately 120kg at that time, one might expect potentially significant injury if he landed on his shoulder and hip from that height. It is surprising that description of the height was first mentioned approximately five years post the fall. We are not satisfied that the applicant fell from such a height, but we are satisfied that he fell and landed on his right shoulder and hip as described in his report to the various medical practitioners whom he consulted.

8. The applicant saw Dr Selvadurai on 14 July 2016 and said he hurt his right shoulder and hip and had back pain. Dr Selvadurai diagnosed trochanteric bursitis of the right hip. The applicant consulted Dr Selvadurai on a number of occasions in July and August 2016. He continued to complain of hip soreness over the trochanteric bursitis. By 25 August 2016, the applicant reported his hip was better but walking long distances causes pain.

9. The applicant consulted his general practitioner Dr Taylor on 22 and 29 September 2016 and 14 October 2016. A report from Dr Taylor to the respondent dated 28 October 2016 outlines those consultations. The first consultation references the shoulder injury. The next visit (29 September 2016), he mentioned discomfort to the right hip. He was alright on the flat, but sore walking longer distances and after climbing in and out of his truck.  On 14 October 2016, he reported that walking still caused discomfort on the right side. The applicant had an MRI the previous week which was requested by AP Steadman. Dr Taylor reported that the applicant had local tenderness to the hip consistent with local injury and diagnosed bursitis to his right hip, with investigations to confirm.

10. The applicant first saw AP Steadman on 5 October 2016 approximately 3 months after the fall. AP Steadman manipulated the hip and noted full range of motion, with some discomfort on the outside of the hip. The applicant complained of pain mostly around the groin and anterior aspect of the hip. He arranged an MRI (the first MRI) of the applicant’s hip which was performed on 11 October 2016 following which AP Steadman provided his report dated 19 October 2016.

11. The MRI was significant in diagnosing the impact the fall had on the applicant’s right hip and his pre-existing labral tears, cysts and early osteoarthritis. AP Steadman said the MRI provided a more specific diagnosis indicating soft tissue injury and trochanteric bursitis which may have resulted from the fall. The applicant had “elements of degenerative disease and he may suffer from symptoms in the future.”

12. The Tribunal found the evidence of AP Steadman compelling including the relevance of the first MRI in explaining the aetiology of the applicant’s hip complaint. Importantly, the MRI showed no injury to the hip arising from the fall. There was no swelling inside the ball-and-socket joint and no synovitis. The pain around the groin was inconclusive which was consistent with the evidence of Mr Menz who said that the pain could have come from the bursitis.

13. AP Steadman said in respect of the hip joint there was no sign of any reactive change with no tears, swelling, or fluid indicative of injury. There was pain on the outside of the hip consistent with trochanteric bursitis. If the applicant had fallen and suffered a “nasty bang” there should still have been some changes in the hip joint. There were no such changes. The hip condition in the MRI all predated the fall.

14. AP Steadman saw the applicant on a number of occasions thereafter. In January 2018, there was no change of opinion.

15. The applicant also saw Dr Munt in May 2018 and complained of lateral hip pain and was referred for cortisone injection of his right hip, however he did not make a follow up consultation with Dr Munt.  Dr Munt provided a report in August 2018 in answer to various questions. He confirmed that when he saw he applicant, he was complaining of continued ongoing pain in the lateral aspect of the hip. He was unable to express an opinion about future treatment as he did not judge the applicant’s response to the cortisone injection but did speculate that he may require hip replacement surgery in the next 5 – 15 years.

16. In January 2018 AP, Steadman again saw the applicant. There was continued tenderness to the lateral aspect of his right hip and the trochanteric bursitis and also reported the likelihood of additional treatment for his degenerative disease.

17. When he saw the applicant on 24 October 2018 as referred to in his report dated 30 October 2018, AP Steadman reported that on examination there was no obvious change. The right hip still had mild trochanteric tenderness but there was gluteal wasting. He was Trendelenburg positive, and his hip was more painful in response to twisting and rotating which AP Steadman reported was indicative of progression of his arthritis. In evidence, AP Steadman explained an ambiguity in his report and the relationship between the fall and the degenerative condition. He confirmed that the fall did not cause the arthritis in his right hip to be aggravated, accelerated or cause a recurrence of the pre-existing degenerative disease. In his report and in evidence, he said the osteoarthritis had deteriorated and was now causing more pain.

18. In evidence AP Steadman explained that by October 2018, over two years after the fall he was starting to see the next part of the evolution of the hip condition which he called the clinical journey of the evolving problem with the hip. He was now having problems with the inside of the hip. Presentation of the applicant on this occasion demonstrated a natural progression of his osteoarthritic condition unrelated to the fall.

19. On 15 August 2019, Dr Munt reviewed the applicant and provided a letter to the applicant’s treating general practitioner Dr Taylor. He wrote, “His right hip was initially giving him pain mainly in the lateral aspect but now he is also getting significant groin pain” (Tribunal’s emphasis). This is consistent with the observation and opinion of AP Steadman that a significant time passed after the fall before the applicant complained of groin pain which could be identified as being indicative of osteoarthritis.

20. The applicant had said to Dr Taylor in January 2017 that his hip was still sore and walking any distance caused pain mainly over the lateral side to the groin; and to Dr Selvadurai on 3 August 2017 that is right hip was sore when he walks with pain into the groin. However, these were isolated complaints. Consequently, both AP Steadman and Dr Menz opined that the reference to pain to the groin or into the groin, were not indicative of development of the osteoarthritic condition and could relate to his trochanteric bursitis and the complaint of pain to the lateral aspect of his hip.

21. The applicant said in evidence that his hip pain following the fall included pain in the groin which continued and worsened over time. That is not consistent with the history of hip pain given to the various medical practitioners he was consulting during the relevant period and over a number of years. His main focus was on his shoulder condition and pain to the lateral aspect of his hip consistent with trochanteric bursitis. The Tribunal does not accept the applicant’s explanation of his developing groin pain immediately following his fall.

22. AP Pohl’s opinion differed from that of AP Steadman and Dr Menz particularly with regard to the aggravation, exacerbation and acceleration of the applicant’s degenerative hip condition. The fact that the applicant was asymptomatic prior to the fall and symptomatic thereafter was a relevant consideration in AP Pohl coming to that opinion.  He did not differentiate between the various conditions that were evident in the applicant’s hip and the development of each over the course of time from the date of the fall until his assessment on 8 July 2020 or in his report dated 9 April 2021 after he received two additional medical reports from Dr Menz.

23. In his report dated 9 April 2021, AP Pohl agreed with Dr Menz that obesity will aggravate the applicant’s pre-existing osteoarthritis. In addition he also said, “I disagree with Dr Menz that if Mr Saunders did aggravate his hip arthritis this would have been for a limited time frame for two or three months only. I do not see the evidence for that in Mr Saunders case. It is recognised that the symptoms a patient manifests of hip arthritis may not mirror the radiological findings; and the converse is true…Mr Saunders symptoms have not settled after two or three months; and radiographs… cannot be relied upon to provide a reliable and valid assessment on whether any aggravation of his hip arthritis has resolved, or not”.

24. AP Pohl opined that “I consider that Mr Saunders suffered an aggravation of his pre-existing osteoarthritis, chronologically related to the subject work-related incident, and from which he has not recovered. I do not consider that Mr Saunders ongoing symptoms are only related to his obesity.” He agreed with Dr Menz that the applicant had moderate hip osteoarthritic symptoms.

25. Importantly, the applicant’s marked weight gain due to an inability to exercise was a relevant consideration in AP Pohl’s opinion. As we have indicated, the Tribunal is satisfied that the applicant’s history to AP Pohl of marked weight gain after the fall is not correct and that at the time of the fall the applicant was obese and weighed about 120kg. The Tribunal is satisfied that weight may cause or contribute to a person’s osteoarthritis and that it was a relevant consideration in respect of the applicant and its contribution to the development of his condition after the fall.

26. The Tribunal also heard evidence about the applicant’s involvement in building and selling houses and floating concrete including after the fall. The Tribunal would expect such manual labour to be relevant to the question of the aggravation or exacerbation of the applicant’s pre-existing osteoarthritis however this appears to have had little consideration by the medical experts. AP Pohl in particular, referred to the applicant’s functions involving driving a truck including loading the truck as potentially causative of his arthritis but failed to consider other manual labour outside of the applicant’s employment and its relationship to his condition.

    CONCLUSION

27. Having regard to the expert evidence, the Tribunal prefers the evidence of AP Steadman and Dr Menz that the fall did not impact upon the applicant’s pre-existing degenerative hip condition. Both AP Steadman and Dr Menz in referring to the first MRI, considered whether the fall had any impact upon the applicant’s osteoarthritis and given the absence of any swelling or fluid indicative of a change in pathology, opined that the fall did not cause, aggravate or exacerbate that condition; and if there was any affect it was temporary and in the nature of a soft tissue injury that would have lasted for two to three months.

28. The Tribunal was impressed by AP Steadman’s explanation about the developmental change in the applicant’s hip condition over time. The Tribunal is satisfied that following the fall the applicant suffered from trochanteric bursitis and it was that lateral hip condition that thereafter impacted upon the applicant. The Tribunal is not satisfied that the occasional reference to groin pain in 2016 under examination and manipulation by AP Steadman or in January 2017 and August 2017 to his general practitioners, was indicative of any change in the applicant’s pre-existing osteoarthritis as a consequence of the fall.

29. Further, the Tribunal accepts the opinion of AP Steadman that the change in the applicant’s osteoarthritis started to become apparent in 2018 approximately 18 months post the fall and was the natural progression of the change of his degenerative condition unaffected by the fall. It is also relevant that Dr Munt in his letter to Dr Taylor in August 2019 wrote that the applicant is now getting significant groin pain which further supports the evidence that groin pain was not a significant aspect in the applicant’s pathology until well after the fall.

30. The Tribunal prefers AP Steadman’s opinion that over the period of time that he saw the applicant, there was a progression of his osteoarthritis, or an evolution of change and in the later examinations he had hip pain from the osteoarthritis. At first, he had tenderness of his right greater trochanter with normal examination of his hip. This was three months post the fall. As time passed, he had pain with flexion and twisting and gluteal wasting and restriction of movement, but this was a different symptomatology unrelated to the fall being a natural progression of his osteoarthritis.

31. The Tribunal is satisfied that as a result of the fall, the applicant suffered an injury to the lateral aspect of his hip namely trochanteric bursitis as diagnosed by his treating general medical practitioners and AP Steadman and Dr Munt, and which was generally accepted as a consequence of the fall. Further the applicant’s main complaint of injury following the fall was mainly his right shoulder injury, and to the extent he suffered some pain in the lateral area of his right hip, namely trochanteric bursitis, that improved.

32. The Tribunal is not satisfied that the applicant suffered any aggravation or exacerbation to his osteoarthritic condition either temporary or at all. The Tribunal prefers the opinions of AP Steadman and Dr Menz supported by the first MRI, that the fall did not impact upon the applicant’s pre-existing mild osteoarthritic condition. 

33. The Tribunal is satisfied that the applicant’s recommended right hip replacement is medical treatment directed to treating the underlying pre-existing degenerative change to the right hip due to osteoarthritis, and the natural progression of the condition that was not aggravated or exacerbated by the fall and is unrelated to the accepted claim of “strain of the right shoulder causing bursitis of the AC joint and strain of the right hip causing trochanteric bursitis.”

    DECISION

34. The decision under review is affirmed.

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth and Member Doctor L Stephan

......................[SGND]..........................

                   Associate

Dated: 11 April 2022

Dates of hearing:  3, 4 and 15 November 2021

Advocate for the Applicant:              Simon Blewett, Selby Street Chambers

Advocate for the Respondent:          Ann McMahon, Greens List Barristers