Scotney and Australian Postal Corporation (Compensation)

[2016] AATA 72

Scotney and Australian Postal Corporation (Compensation) [2016] AATA 72 (12 February 2016)

Division	GENERAL DIVISION
File Number	2014/5291
Re	Joanne Scotney
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Deputy President Dr Christopher Kendall
Date	12 February 2016
Place	Perth

The Tribunal sets aside the Reviewable Decision of the Respondent dated 21 August 2014 and, in substitution therefor, decides that a right hip replacement procedure for the Applicant, Ms Joanne Scotney, is reasonable in the circumstances.

The Tribunal orders, pursuant to s 67(8) of the Safety Rehabilitation and Compensation Act 1998 (Cth), the costs of the proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction. 

................[sgd]..................................................

Deputy President Dr Christopher Kendall

CATCHWORDS

COMPENSATION – injury to right lower back with groin strain and labral tear to right hip in workplace – multiple medical and surgical procedures – severe pain continuing – claim for costs of hip replacement – reasonableness of costs associated with total hip replacement in woman of relatively young age – costs found to be reasonable in the circumstances – decision under review set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – sections 4 and 16(1)

CASES

Jorgensen v Commonwealth of Australia (1990) 23 ALD 321

Alamos and Comcare [2014] AATA 629

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

12 February 2016

BACKGROUND

1. Joanne Scotney is aged 47.  In April 2009, she commenced employment with Australia Post as a part-time mail sorter at the Perth Parcel centre in Welshpool (T4). 

2. In December 2009, Ms Scotney injured herself while lowering a carton of wine into the back of a Unit Load Device (“ULD”) (T27).  She has described this as “experiencing a ‘ping’ like an elastic band snapping” from her groin to her knee and also out through her back (T27).

3. On 2 May 2010, Ms Scotney completed a workers compensation claim form for “strain injury – groin/back” (T4).  

4. On 10 September 2012, Australia Post accepted liability for a right hip arthroscopy and changed the injury description to “right lower back, groin strain and labral tear to right hip” (T29). 

5. Following her injury, Ms Scotney underwent numerous medical examinations and medical procedures.  Her medical procedures have been described as including “2 arthroscopic debridements, 16 injections, extensive therapy and many radiological exams” (T59).  She is currently heavily medicated for pain management. It is suggested that any future pain management plan may need to include to the use of opiates should hip replacement surgery not occur.

6. Ms Scotney claims that none of these procedures or interventions has provided any long term benefit and that she suffers from considerable pain on a daily basis that diminishes her quality of life.

7. Ms Scotney’s treating orthopaedic surgeon, Mr Sani Erak, agrees with this assessment and has recommended that Ms Scotney have a total right hip replacement as nothing else has provided any relief to Ms Scotney.

8. Evidence before this Tribunal indicates that the cost of a hip replacement is in the region of $34,000 to $40,000 (A3). 

9. A Determination dated 1 August 2014 concluded that Australia Post was not liable to pay compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) for costs associated with a proposed “right hip replacement” in respect of Ms Scotney’s claim for compensation for “right lower back and groin pain and labral tear in right hip” (T67).

10. On 21 August 2014, a Reviewable Decision affirmed the Determination of 1 August 2014 (T69). The Delegate found, specifically, that the proposed hip replacement surgery was not “reasonable medical treatment” in relation to Ms Scotney’s compensable injury, as defined in section 16 of the SRC Act.

11. Ms Scotney now seeks review of the Reviewable Decision dated 21 August 2014, which affirmed that Determination of 1 August 2014.  She argues that a hip replacement is reasonable in the circumstances and that Australia Post should be required to pay for this procedure.

    ISSUES

12. In relation to the first limb of section 16 of the SRC Act, it is not in dispute that:

    a)The Applicant’s current right hip condition is due to the work injury of 20 December 2009.

    b)The surgery the Applicant is claiming liability for, is ‘in relation to’ the accepted condition sustained on 20 December 2009.

13. The issue before the Tribunal is confined to the second limb of section 16, namely whether the proposed right hip replacement surgery is “reasonable medical treatment” for Ms Scotney to obtain in the circumstances.

    LEGISLATION PROVIDING FOR COMPENSATION FOR MEDICAL EXPENSES

14. Section 16(1) of the SRC Act provides as follows:

    Compensation in respect of medical expenses etc.

    (1)  Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

15. “Medical Treatment” is defined in section 4 of the SRC Act.

    DOCUMENTARY EVIDENCE FROM MS SCOTNEY

    Ms Scotney’s Proof of Evidence

16. Ms Scotney provided a lengthy proof of evidence, dated 17 June 2015.  The Tribunal notes the following relevant paragraphs from that proof of evidence:

    1.        I was born on 18 October 1968.

    2.On 20 December 2009 in the course of my employment with Australia Post, I had a carton of wine in my hand from waist height ULD and was going to place it in floor level ULD. The technique of brick-stacking was expected and wine was to be placed at the back of ULD first and then filled towards the front. As my knees touched ULD when I bent down, using safe manual handling techniques, I positioned myself more side-on to the ULD to be able to bend forward to place the carton of wine. As I was moving to place it, I saw a better opening just to the left and swung toward it to place the carton of wine. At this point there was a sensation of tearing from what seemed like my pubic bone and snapping at my knee. It felt like a rubber band had just snapped. I was in pain. Australia Post have since introduced a safer practice of making it mandatory to remove the gates, thus removing the barrier to safe manual handling for taller people.

    3.I experienced excruciating pain at the time of the incident in the groin and lower back. As I continued to work over the coming weeks, the pain in the groin continued and intensified on activity as with the back pain. The right side of my leg started to ache continually until I could not even sleep, lie on it, or sit for any period of time. To this day I still have trouble getting to sleep as I cannot be on my natural side. Over time it all worsened to the point it impacted on all areas of my life and I could no longer work in any capacity as I could not sit in any position for a length of time, limped when I stood up and walked and overall it was having a negative emotional impact on me.

    …..

    15.      The hip injury, restriction, and inability to work have resulted in:

    1.1the financial impact - just managing to keep my house of 12 years by renting it, have no car and have crippling debt that has been acquired over the past few years to make ends meet;

    1.2the relationship strain;

    1.3the pain and medications that alter the way you feel

    l.4 no social interactions as nothing changes in my life, I am still in pain and cannot do activities with friends so they no longer invite me;

    1.5      isolation of being alone most of the time;

    1.6loss of independence, self-esteem and confidence;

    1.7feelings of hopelessness and anger. Australia Post and I were both made aware in the very beginning that a total hip replacement may be the eventual outcome and for them to say there is not enough reasonable medical evidence is just unfathomable for me. I have resisted a hip replacement as much as possible and done every program (physiotherapy, hydrotherapy, Pilates) and treatment (a total of 21 injections) possible to avoid it, but I can no longer stand the pain or negative impact on my life and am desperate to have the hip surgery and give me an improved outcome. No doctor will ever guarantee for any surgery outcome and the hip replacement may not solve everything, but one thing is certain - I will be in less pain around my hip joint than I am now and I will be able to engage in more activities than I currently do, and ultimately become an active contributing and worthwhile member of society again.

    16.      My physical restrictions are:

    1.8walking limited to about 30-40mins before pain takes over;

    1.9sitting limited to about 1 hour maximum, even at home on a couch. Even less if in car and I cannot walk properly at first when I get out of a car;

    1.10need to sit in chairs with generous seats and no arm frames that touch my thigh or it is excruciating pain;

    1.11need to physically assist putting my right leg into the car and slowly get out of car to avoid fast twisting and resulting pain;

    1.12sweeping (very restricted) and cooking is very guarded as the twisting motion exacerbates the groin pain;

    1.13I am not able to carry heavy things in my right hand or have anything touch the right side of my thigh;

    1.14I am unable to put my weight on my right side;

    1.15I cannot lie on my right side, affecting quantity and quality of sleep;

    1.16I am very restricted in sexual positioning and activity;

    1.17I cannot lift my right leg from thigh when seated;

    1.18showering such as shaving my legs and washing the underside of my right foot cannot be done in the shower as I cannot position my right leg and foot. I instead need to have a bath to perform these activities.

    1.19I cannot cross my legs on a floor;

    1.20I cannot put my right leg (heel) on my left knee;

    1.21I cannot turn my body without ensuring to move my feet or I will get sharp pains;

    1.22I am not able to exercise which has had a huge impact on body image, weight, self-esteem and overall health;

    1.23I need assistance to do housework and shopping;

    1.24I do not want to be around people in case I get bumped on my thigh;

    1.25gardening is no longer and [sic] activity I can do;

    1.26I have a permanent disfigurement on the outside of my right thigh that is visible, sensitive to touch and restricts what I wear, e.g. jeans or heavy side seams.

    2.My emotional restrictions are:

    2.1depression needing medication;

    2.2sleep disturbance that need medication from time to time to allow me to sleep when the depression is worse;

    2.3relationship strain;

    2.4isolation;

    2.5lack of self-worth and esteem.

    WRITTEN MEDICAL EVIDENCE

17. Ms Scotney has an extensive medical history spanning almost five years.  She has seen multiple medical specialists since being injured and has had multiple medical procedures and assessments. The Tribunal heard oral evidence from five orthopaedic surgeons and a leading pain specialist.   

18. Written medical reports and oral evidence were provided by the following orthopaedic surgeons:

    ·Dr Sani Erak (Ms Scotney’s treating Consultant Orthopaedic Surgeon)

    ·Dr Michael Wren

    ·Dr Peter Annear

    ·Dr Michael Alexeeff

    ·Dr Philip Hardcastle

19. The Tribunal also received written and oral evidence from Dr Mark Schutze, a respected pain management specialist.  

20. In the circumstances, it is useful to outline in detail this extensive medical history and varied reports of those who either examined or treated or made comment in relation to Ms Scotney.

    MRI and Ultrasound Reports of Ms Scotney by Dr Arockia Doss (various dates, commencing 18 January 2010 and ending 26 August 2010) (T12)

21. These reports detail the radiological examinations conducted in relation to Ms Scotney in the year after she was injured at work (on 20 December 2009).  The reports read as follows:

    18 January 2010

    RADIOGRAPH OF THE LUMBAR SPINE AND PELVIS:

    HISTORY:      ? pelvic pathology, stress fracture, tendinosis, facet OA. Right lower back pain, pain radiating into right groin.

    FINDINGS:     There is advanced right L5/S1 facet OA. There is a degree of mild facet OA at the remainder of the lumbar spine particularly at left L3/L4, L4/L5, left L5/S1 and on the right at L4/L5 also present.

    The discs appear relatively spared in the lumbar spine and there is no facet degeneration.

    Non specific, mild right S-I joint OA.

    No evidence of established sacral fractures, pubic bone abnormality or iliac wing sinister lesions.

    Both hip joints do not demonstrate any advanced OA.

    COMMENT:    There is advanced right L5/S1 facet OA. No pelvic bony lesion.

    30 April 2010

    ULTRASOUND OF THE RIGHT GROIN;

    HISTORY:      Work-related injury. Facet joint still annoying on lower right but clinically, ? symphysis pubis/tendinitis inflammation.

    FINDINGS:     The conjoint tendon is normal bilaterally.

    The distal rectus sheath insertion and interpubic ligament are intact with no irregularity of the pubic body.

    The right adductor insertion demonstrates some insertional enthesopathic changes of degeneration compared to the left but no tearing of the adductor longus, brevis or magnus conjoint tendon. The patient is focally tender at the right adductor origin.

    COMMENT: Appearances are suggestive of right adductor, insertional enthesopathy.

    26 August 2010

    MRI PUBIC SYMPHYSIS:

    HISTORY:      Work related right groin/adductor strain, almost a year old now, not getting better.

    Technique:     Coronal STIR, Tl, axial STIR and intermediate echo, sagittal STIR and intermediate echo sequences. Coronal symphysis pubis T2 fat sat and intermediate echo fat sat images.

    FINDINGS:     The pubic symphysis, cortical outline of the pubic bones at the articular surface, pubic symphysis ligament, conjoint rectus femoris, adductor insertions are within normal limits. No evidence of osteitis pubis, stress fracture, avascular necrosis or MR evidence of established adductor tendinosis. No evidence of high grade tendon tearing or retraction. No evidence of adductor compartment spraining.

    The obturator internus muscle, pelvic side wall and viscera appear unremarkable.

    At the junction of the femoral head and neck anteriorly there is a subchondral septated. benign appearing cyst with fluid signal measuring 1.5cm st 1,1cm on the right. There is associated very mild overlying hip joint effusion. The lesion is very minimally expansile and mildly protrudes through the cortical outline. Very mild anteromedial surrounding bone marrow oedema is noted.

    Allowing for a nontargeted examination for the hips there is no evidence of high grade hip joint articular cartilage or labral abnormality.

    COMMENT:

    1.There is no evidence of a high grade tear of the adductor tendons, osteitis pubis or stress fracture of the pubic bones.

    2.Ultrasound is more accurate for localised adductor symptomatic tendinosis/delamination splits.

    3.There is an incidental right anterior and inferior femoral head/neck junction cystic lesion. Non dedicated imaging of the right hip and labral/articular cartilage degenerative changes have not been entirely excluded. Do symptoms localise to the right hip?

    Ultrasound Report of Dr Ashish Chawla and Dr Paul Sprague, SKG Radiology, dated 30 December 2010 (T7)

22. This report reads as follows:

    ULTRASOUND RIGHT GROIN

    Clinical History: Pain right groin. ? Femoral hernia. ? Bursitis.

    Findings: Ultrasound of the right groin was performed using high-frequency linear transducer.

    A small completely reducible, indirect inguinal hernia is demonstrated at the right groin. It measures approximately 2.0 x 0.3cm. Herniation of the mesenteric fat is seen. No herniation of the bowel loops is demonstrated.

    No hip joint effusion is demonstrated. Cortical irregularity at the hip joint is likely related to degenerative changes. Enthesopathic changes are noted at the attachment of the rectus femoris at the anteroinferior iliac spine. Mild enthesopathic changes are also noted at the right gluteus minimis tendon attachment at the greater trochanter. The gluteus medius and minimis tendons are normal in appearance and are intact. No thickening of greater trochanteric bursa is demonstrated.

    Report of Dr Geoffrey Gee, Pain Specialist, dated 5 April 2011 (T8)

23. This report reads as follows:

    I reviewed Ms Scotney on the 5 April 2011. She continues to complain of predominantly right groin pain and she certainly has tenderness in the area of an inguinal hernia together with tenderness over the insertion of the right rectus.

    As you are aware, her ultrasound does reveal evidence of a hernia and in view of the persistent pain at this site it may be appropriate to get a surgical opinion before travelling any further.

    I would encourage her to maintain her current hydrotherapy.

    X-Ray Report of Dr Rory Porteous, SKG Radiology, dated 6 May 2011 (T9)

24. This report reads as follows:

    X-RAY PELVIS AND RIGHT HIP

    Clinical History: Pain right hip. MRI shows cystic lesion femoral head ? nature.

    Findings: Comparison is made to the recent MRL.  The previously-noted cystic lesion in the anterior femoral head/neck junction region is poorly visualised on plain x-ray with a vague lucency noted in this region. There is no radiographic evidence of cortical destruction. No definite corticated margin is seen. There is mild asphericity of the anterior femoral head/neck junction which may predispose to Cam-type femoro-acetabuiar impingement. The superior joint space is minimally narrowed. No significant osteophytosis is noted.

    Acetabular morphology is normal bilaterally. Tiny corticated lucency involving the left femoral neck likely represents a synovial herniation post-op.

    Comment: The abnormality identified on MRI is not well-visualised on plain x-ray. A subtle lucency is noted in this region. I suspect this represents a synovial herniation pit possibly related to underlying Cam-type femoro-acetabuiar impingement. On further assessment of the previous MRI, there are features to suggest an anterior labral tear with possible small paralabral cyst which would be better seen with an MR arthrogram.

    Report of Dr Sani Erak dated 6 May 2011 (T10)

25. Dr Erak is Ms Scotney’s treating consultant orthopaedic surgeon.

26. Ms Scotney was referred to Dr Erak by Dr David Evans of Complete Corporate Health. 

27. This report, Dr Erak’s first of many in relation to Ms Scotney, is directed to Dr Evans and reads as follows:

    Thank you for referring Joanne, a forty-two year old postal worker who initially had an injury in 2009. She was moving a case of wine and felt a tearing sensation in her groin radiating down to her knee. Since then she has had pain around her groin, pubic region, lateral side of hip and in her lower back. She finds the pain is present most of the time but twisting movements are sore. Lying down on this side is sore as well. She is still able to walk a reasonable distance, up to two kilometres.

    She has seen Dr Gee, who has organised facet joint injections. In total she has had four, the first of which gave her good relief of her back pain but subsequent ones (the last being seven months ago) haven't helped a great deal. She also had a sacroiliac joint injection done four to five months ago, which seems to have helped her low back pain as well. Joanne has tried physiotherapy and hydrotherapy, and was taking Celebrex but has stopped this at present. She has not had any other injections.

    Examination shows high BMI, tender over pubic region, right lower lumbar facets, and over the lateral aspect of her hip. There is pain with flexion and rotation of her hip particularly in- internal rotation producing groin pain. She is mildly tender over her adductor tendons.

    I reviewed the imaging showing facet joint arthritis at the L5/S1 level.

    The MRI scan of her pubic symphysis shows a right femoral neck cystic lesion of unknown etiology, and no evidence for osteitis pubis, stress fracture of the pubic bone or high grade tear of the adductor tendons.

    I do wonder if Joanne may have some, intra-articular pathology in her hip such as a labral tear, and we will organise for an MR arthrogram to be done of her right hip, which will also allow us to evaluate the cystic lesion.

    We will also get a plain film done of her hip and pelvis to give us more information about the cystic lesion and I plan to see her with the results of this.

    Report of Dr Dirk Sweeney, SKG Radiology, dated 7 June 2011 (T13)

1. This report reads as follows:

   Clinical History:  Painful right hip after work injury 2009. Pain with flexion/rotation. ? labral tear.

   MRI pelvis demonstrates cystic lesion right proximal femur. ? nature.

   Technique: lntra-articular contrast injection followed by coronal PD and T2 (fat sat), axial and sagittal T2 (fat sat) and oblique axial T1 (fat sat).

   Patient recalled for axial T1 (fat sat) pre and post IV contrast and sagittal gradient echo sequence (for further evaluation right femoral lesion).

   Findings: Hip morphology is normal. Femoral head and acetabular cartilage are preserved. There is minor subchondral cystic change involving the lateral acetabular rim (Image 10 coronal) and more significant change involving the anterosuperior acetabulum (image 11 sagittal). There is diffuse increased signal of the anterosuperior labrum (images 11-12 sagittal). There is probable cystic change within the labral substance (image 6 axial) extending onto the capsular surface where there is an associated small paralabral cyst.

   There is also a well defined fluid filled cleft at the base of the anterior labrum (more interiorly) associated with a small paralabral cyst and there suggestive of a further labral tear (image 10 axial).

   There is normal joint distensibility and no evidence of a loose body or synovitis within the joint space.

   A well defined bone lesion is confirmed at the anterior aspect of the femoral head/neck junction. This abuts the anterior bone cortex and has a well defined slightly lobulated margin. There is no evidence of cortical restriction or of perilesional bone marrow oedema.

   The lesion matrix is similar to that of articular cartilage. There is some rim and some nodular internal enhancement on the post contrast series. The appearances are those of a non aggressive lesion, most likely chondroid-series.

   The psoas tendon appears normal.

   The gluteal tendons are intact. There is mild oedema surrounding the distal gluteus minimus tendon as well as mild oedema within the trochanteric bursal space (image 18 axial).

   The pubic rami are Intact. Hamstring origin and sciatic nerve are unremarkable.

   Comment:

   1.Diffuse injury of the anterosuperior labrum with intralabral and paralabral cyst formation.

   2.Further tear more inferiorly of the anterior labrum with a small associated paralabral cyst.

   3.Subchondral cystic change involving the anterosuperior and lateral acetabular rim, but otherwise no degenerative changes.

   4.Non aggressive lesion of the anterior femoral head/neck junction. Characteristics favour a benign chondroid-series lesion (not cyst).

   5.        Incidental mild subgluteus minimus and trochanteric bursitis

   Report of Dr Sani Erak dated 8 June 2011 (T14)

2. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. She has had the MR arthrogram done of her right hip, which shows a diffuse injury of the antero-superior labrum with intralabral and paralabral cyst formation, some subchondral cystic change in the acetabular rim but otherwise no degenerative change, and a benign chondroid-series lesion or tumour in the anterior femoral head/neck junction. The latter has no appearances of an aggressive lesion, and has probably been present for a while.

   Joanne's pain is a combination of groin pain, pubic pain, lateral sided hip pain, and lower back/buttock pain. It tends to be aggravated by her spending a long time sorting parcels, which involves standing on her feet and twisting for two to three hours.

   She was taking Celebrex for the pain, but has stopped this at present as it tends to cause indigestion type symptoms. She doesn't take regular analgesia.

   Joanne has had facet joint injections done previously which have helped things, and a sacroiliac joint injection which did help things but only after a few weeks.

   Examination today shows tender over her right lower lumbar facets, over her greater trochanter and over her pubic symphysis. Range of movement in hip restricted but particularly sore in the impingement position of flexion and internal rotation.

   I think Joanne's symptoms are primarily due to the labral injury to her hip and she has secondarily developed trochanteric bursitis, some low back pain and pain in her pubic region secondarily.

   We will trial a steroid injection into her hip as a diagnostic test, followed by a trochanteric bursal injection and a repeat right L5/S1 facet joint injection; all of these injections separated by two to three weeks.

   We will monitor the chondroid lesion in her hip and repeat an MRI scan in three months or so.

   She will also get back onto physiotherapy for exercises specifically targeted at “osteitis pubis”, trochanteric bursitis, and back exercises.

   I plan to see Joanne again a couple of weeks after the last injection.

   Report of Dr David Evans, Complete Corporate Health, dated 14 July 2011 (T12)

3. This report, addressed to Claims Management, Australia Post, and in response to a request from Australia Post, reads as follows:

   Thank you for your letter dated 25/05/11 regarding Ms Scotney and her medical conditions.

   I provide the below information regarding her medical issues and direct responses to your posed questions.

   Ms Scotney first attended our rooms on 22/12/09 having sustained an injury while employed with Australia Post on 20/012/09. Ms Scotney reported that the injury was sustained when trying to lift a carton of wine out of a ULD. Ms Scotney stood next to the ULD and transiently supported the weight of the carton on the folded gate. She then lifted the carton and attempted to move her right [sic] before experiencing the sudden onset of pain in the region of the right groin radiating to the medial aspect of the right knee. During the initial consultation, Ms Scotney was noted to be tender in the region of the L5/S1 lumbar spine, with palpation in this area inducing groin pain similar to that at the moment of injury. A regime involving anti-inflammatories, paracetamol and physiotherapy was commenced.

   At a follow up appointment on 04/01/10, Ms Scotney was re-examined and was found to have developed lateral right hip pain while also demonstrating some pain on adduction of the right hip against resistance, suggestive of a hip adductor strain. Physiotherapy was continued at this stage but the pain remained relatively refractory to these measures. At this stage, the loci of pain included the groin, lateral right hip and right sided L5/S1 lumber spine. An X-ray of the pelvis and lumbar spine was subsequently organised. The report of this investigation included, “there is advanced right L5/S1 facet OA” (see full report attached). At an appointment on 21/01/10, a CT guided steroid and local anaesthetic right L5/S1 facet injection was organised. This was expedited on 28/01/10. Joanne reported pain relief lasting for approximately 1 month after this procedure. A further CT guided facet joint injection was organised and expedited on 19/03/10. There was no improvement in pain with this repeat injection. Note was made to the loci of pain being the right side of the lumbar spine at the L5/S1 level and the right groin at this stage.

   To evaluate the right groin source of pain further, an ultrasound of the region was organised and expedited on 30/04/10. The report of this investigation included, “appearances are suggestive of right adductor, insertional enthesopathy” (see full report below). On 28/03/11, a rapport with the treating physiotherapist indicated that Ms Scotney had demonstrated some improvement in pain in the area of the right groin but was still troubled with persistent pain in the region of the right L5/S1 facet joint. In July 2010, it was noted that Ms Scotney had made ground with the groin related pain and had increased range of movement. At this stage, Ms Scotney was suffering from exacerbations of pain affecting the lower right back and right groin, with the pain, experienced on a weekly basis.

   Due to worsening groin pain symptoms and tenderness in the region of the symphysis pubis, a pelvic MRI scan was organised and expedited on 26/08/10. The report of this investigation included, “1. No evidence of a high grade tear of the adductor tendons, osteitis pubis or stress  fracture of the pubic bones. 2. There is an incidental right anterior and inferior femoral head / neck junction cystic lesion. Non-dedicated imaging of the right hip and labral / articular cartilage degenerative changes have not been entirely excluded, do symptoms localise to the right hip?” (see full report attached). A further right sided L5/S1 facet joint injection was organised and expedited on 17/09/10. Ms Scotney attended our rooms with an exacerbation of her pain on 30/09/10.

   Ms Scotney again attended our rooms on 05/11/10 with a further exacerbation of pain localised to the lower hack and in the region of the right groin. She was placed on an optimised analgesic regime and certified to work half of the lengths of her usually rostered shifts until the next review. On 12/11/10, Ms Scotney was referred to the pain specialist Dr Geoffrey Gee. The consultation took place on 13/12/10. The rapport [sic] from Dr Gee indicated: 1. tenderness in the region of the right side of the lumbar spine at the L5 level extending to the right sacroiliac area, 2. tenderness over the right hip consistent with a trochanteric bursa and, 3. tenderness over the adductor and gracilis tendons. Dr Gee organised a right sided sacroiliac joint injection as well as a right groin ultrasound in light of the fact that, upon palpation of the area, he felt the suggestion of a mass in the groin- to exclude an inguinal hernia. Subsequent rapport from Dr Gee stated that the sacroiliac joint injection had not been efficacious. The groin ultrasound again revealed ensethopathic changes and a very small direct right sided inguinal hernia. It is of note that at the end of January, Ms Scotney was involved in a motor vehicle accident and developed neck pain. She did not report the onset of any new pains associated with the lower back or right groin region after the accident.

   Ms Scotney was again seen on 01/03/11 with an exacerbation of the right sided groin pain. Joanne was again placed on a restriction of 2.5 hours per shift. At this time Ms Scotney was referred to Guardian Exercise Physiologists for a gym based rehabilitation programme. During the consultation on 16/03/11, it was seen that Joanne’s symptoms had improved slightly. She was advised to continue with hydrotherapy and await her pain specialist review with hands-on physiotherapy input to directly treat the groin related pain. Joanne was again seen by Dr Gee on 07/04/11 but no definitive management alterations were made. Due to the refractory nature of Ms Scotney's symptoms, a referral to the orthopaedic surgeon Mr Sani Erak, of the Western Orthopaedic Clinic, was made. Throughout this time, she was certified to work 2.5 hours per rostered shift in order to both rest the groin and provided time to undertake the Guardian rehabilitation programme.

   At the initial orthopaedic consultation with Mr Erak, a MRI arthrogram of the right hip was organised. The report of this investigation included, "1. Diffuse injury of the anterosuperior labrum with intralabral and paralabral cyst formation, 2. Further tear more inferiorly of the anterior labrum with a small associated paralabral cyst, 3. Subchondral cystic change involving the anterosuperior and lateral acetabular rim, otherwise no degenerative changes, 4. Non-aggressive lesion of the anterior femoral head / neck junction. Characteristics favour a benign chondroid-series lesion (not cyst), 5. Incidental mild subgluteus minimus and trochanteric bursitis”.

   Following this investigation, Ms Scotney was again reviewed by Mr Erak. It is of Mr Erak’s opinion that Joanne’s symptoms are primarily due to the labral injury in the hip with secondary development of trochanteric bursitis, lower back pain and pubic pain. According to Mr Erak’s management, Ms Scotney has been referred for a course of steroid injections to the hip joint, trochanteric bursa and right sided L5/S1 facet joint. According to Ms Scotney, Mr Erak has certified that she is unable to attend work in any form during the course of these injections. Joanne was last consulted at our rooms on 01/07/11. She was mid-way through the course of injections at this stage.

   With respect to your specific questions.

   1.        What is the history provided at your examinations?

   See above synopsis.

   2.In your opinion, from what specific medical condition does Ms Scotney currently suffer, specifically in relation to the incident as described in the Incident Report dated 20 December 2009?

   It is my opinion that Ms Scotney suffered a right hip labral injury at the time of the above injury which has secondarily caused right sided lower back pain and groin pain.

   3.If Ms Scotney suffered or suffers a medical condition, whether this condition:

   a.        Was or is the result of the incident of 20^th  December 2009? OR

   b.Was or is an aggravation of an underlying or pre-existing condition to which the incident of 20^th December 2009 has contributed? OR

   c.Was or is a naturally progressing underlying or pre-existing condition to which the incident of 20^th December 2009 did not contribute? OR

   d.Was or is due to some other factor or factors, and if so, your advice as to these factors.

   i)  It is my opinion that the labral injury to Ms Scotney’s right hip is an injury related to the incident of 20^th December 2009 ergo comes under the umbrella of 3a above.

   ii)  It is my opinion that the pain related to Ms Scotney’s right groin is related to an adductor strain related to the incident of 20^th December 2009 ergo comes under the umbrella of 3a above.

   iii) It is my opinion that Ms Scotney’s lower back pain is a pre-existing condition to which the incident of 20^th December 2009 has contributed ergo comes under the umbrella of 3b above. L5/S1 facet joint osteoarthritis.

   4.If the condition nominated in answer 2 is the result of an aggravation of a pre-existing or underlying condition, is the aggravation of a permanent or temporary nature, and if temporary, when would it be reasonable to assume that the effects of that aggravation ceased, or will cease?

   With respect to point iii) above, I would expect the aggravation to be temporary in nature and to have resolved within a time frame of 6 months.

   5.        What is the extent or severity of any current pathology?

   As demonstrated by the recent right hip MRI arthrogram, tears are evident in the labrum of the right hip joint constituting a moderately severe injury.

   6.        What is the natural progression of Ms Scotney’s current condition?

   Ms Scotney’s symptoms have been constant for some time without meaningful improvement. I am currently awaiting the outcome of her orthopaedic surgical consultation.

   7.If Ms Scotney continues to suffer from a work-related condition, what rehabilitation and / or medical treatment is required and what is the expected frequency and duration of any recommended treatment?

   Ms Scotney is currently under the management of an orthopaedic surgeon. I am unable to comment on the above question at this stage as I am awaiting further clarification from the surgeon.

   8.As you are aware Ms Scotney has been declared fit for work 2.5 hours per shift with restrictions and no overtime. It is noted that Ms Scotney is now working an additional job working from 9am to 4pm and then undertaking work with Australia Post.

   (a)       Has Ms Scotney advised you of her other employment?

   (b)Should Ms Scotney be undertaking any other shift work given that you have certified her for 2.5 hours work per shift?

   (c)       What impact will the other job have on her condition?

   (d)      When can she return to full hours with Australia Post?

   a)I have been made aware by Ms Scotney that she has trialled employment with another employer. I was unaware that she had been undertaking the hours stated above and then undertaking shifts with Australia Post.

   b)No. Ms Scotney should not be undertaking work beyond the remit stated on her medical certification.

   c)This would depend on the type of employment she has also been undertaking. I would need clarification of this prior to answering this question.

   d)Subject to management by Mr Sani Erak, orthopaedic surgeon. I am currently awaiting a definitive management plan to be instigated by the surgeon.

   7. What is you prognosis?

   I am awaiting a formal diagnosis to be made by the orthopaedic surgeon Mr Sani Erak. Until this undertaking has been completed, I am unable to comment on Ms Scotney’s prognosis.

   8. Any other observations or comments you wish to make?

   No.

   Report of Dr Sani Erak, dated 8 June 2011 (T14)

4. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. She has had the MR arthrogram done of her right hip, which shows a diffuse injury of the antero-superior labrum with intralabral and paralabral cyst formation, some subchondral cystic change in the acetabular rim but otherwise no degenerative change, and a benign chondroid-series lesion or tumour in the anterior femoral head/neck junction. The latter has no appearances of an aggressive lesion, and has probably been present for a while.

   Joanne's pain is a combination of groin pain, pubic pain, lateral sided hip pain, and lower back/buttock pain. It tends to be aggravated by her spending a long time sorting parcels, which involves standing on her feet and twisting for two to three hours.

   She was taking Celebrex for the pain, but has stopped this at present as it tends to cause indigestion type symptoms. She doesn't take regular analgesia.

   Joanne has had facet joint injections done previously which have helped things, and a sacroiliac joint injection which did help things but only after a few weeks.

   Examination today shows tender over her right lower lumbar facets, over her greater trochanter and over her pubic symphysis. Range of movement in hip restricted but particularly sore in the impingement position of flexion and internal rotation.

   I think Joanne's symptoms are primarily due to the labral injury to her hip and she has secondarily developed trochanteric bursitis, some low back pain and pain in her pubic region secondarily.

   We will trial a steroid injection into her hip as a diagnostic test, followed by a trochanteric bursal injection and a repeat right L5/S1 facet joint injection; all of these injections separated by two to three weeks.

   We will monitor the chondroid lesion in her hip and repeat an MRI scan in three months or so.

   She will also get back onto physiotherapy for exercises specifically targeted at "osteitis pubis", trochanteric bursitis, and back exercises.

   I plan to see Joanne again a couple of weeks after the last injection.

   Report of Dr Sani Erak dated 20 July 2011 (T15)

5. This report reads as follows:

   I saw Joanne again today. She has had injections into her trochanteric bursa and facet joint done. All of these have helped somewhat, but not completely alleviated her pain. The hip joint injection initially did not really produce a result, but after a week or two did produce some relief of groin pain. The trochanteric bursal injection has helped her lateral sided hip pain and reduced this to perhaps 1/10 or 2/10. Her facet joint injection similarly has also helped her lower back/buttock pain.

   Despite this, Joanne remains persistently sore, particularly with standing and twisting.

   Examination today shows slightly tender over the lower lumbar facets and over the greater trochanter with pain in flexion and internal rotation, and tenderness over the pubic symphysis.

   I viewed her MRI scans again showing the diffuse injury to the labrum, some chondral wear, and a chondroid-series tumour.

   I think Joanne's symptoms are probably a combination of labral pathology, chondral wear, trochanteric bursitis, the secondary osteitis pubis, and some facet joint arthropathy.

   I have suggested to Joanne trialling Panadol Osteo on a regular basis, using anti-inflammatories if she has break through pain. She is on fish oil capsules at present, but will also trial some glucosamine. I am happy that she can get back to physiotherapy and hydrotherapy.

   Whilst we are trying to settle her hip down, I think it is reasonable to avoid any twisting movements on her hip and I have certified her unfit for a further six weeks.

   Given that she has not had a spectacular response to the intra-articular injection of local anaesthetic and steroid, I am a little reluctant to undertake hip arthroscopy, particularly given the chondral pathology in her hip, albeit fairly low grade on the MRI scan. We certainly could end up precipitating a lot of hip pain from a hip arthroscopy and then forcing a hip replacement, for which Joanne is very young.

   I would like to see how Joanne settles down over the next six weeks, and during that time we will get a CT scan, which sometimes lets us see more clearly how much chondral wear there is in her hip.

   Report of Dr Liezel Reif, SKG Radiology, dated 22 August 2011 (T17)

1. This report reads as follows:

   Clinical History: Right hip and groin pain. ? Early degeneration.

   Technique: MDCT has been obtained of the right hip with axial, coronal and sagittal thin reformatted images displayed on bone and soft tissue windows.

   Findings: The hip joint remains enlocated.

   Marginal osteophytosis and irregularity of the superior anterior labrum of the acetabulum is noted. Corresponding subchondral sclerosis and large subchondral cyst affecting the anterior aspect of the femoral head.

   Normal spherical contour of the femoral head articular surface is preserved.

   Mild general joint space narrowing is present. The medial and inferior acetabular walls remain intact.

   Comment: There is early narrowing of the right hip joint space. Irregularity with subchondral cyst formation and subchondral sclerosis involving the anterior superior acetabular border. I note that the patient has had a previous MR dated 30.05.2011 at which time, abnormality of the Iabrum as well as subchondral cyst formation possibly due to femoral acetabular impingement was noted.

   Subchondral cyst formation involving the anterior articular border of the femoral head is confirmed. The picture has remained essentially stable. No further complication is present.

   Report of Dr Sani Erak dated 8 September 2011 (T18)

2. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. She is having ongoing pain in her lower back, groin and lateral hip. Her standing and walking distance is half an hour. She takes Panadol Osteo, Celebrex, glucosamine and fish oil, and is taking hydrotherapy.

   Examination today shows tender over the greater trochanter with pain on flexion and internal rotation.

   A CT scan of her right hip shows some narrowing of the joint space anteriorly, with a sub-chondral cyst along the antero-superior acetabular border, in addition to the cyst in the anterior border of the femoral head. This is reported on the MRI scan as a likely benign chondroid-series tumour.

   At present, Joanne would still find it difficult standing and twisting on her leg at Australia Post sorting parcels. I think it is reasonable to repeat the injections into her right hip and trochanteric bursa, as she does seem to have derived some benefit from these previously. An option for her hip in future would be hip arthroscopy, but again we would risk flaring her hip and precipitating a hip replacement, which neither of us are keen on given her young age.

   I understand Joanne is also looking at weight reduction surgery, and certainly this will help take some pressure off her hip.

   I plan to see Joanne again in two months time.

   Report of Dr Sani Erak dated 1 February 2012 (T19)

3. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. Since I saw her last her pain has flared in late December and early January. She has more groin pain than previously in addition to lateral sided hip pain. She remains on Panadol Osteo and Celebrex.

   Examination shows pain with flexion and internal rotation, and also in moving from flexion to extension.

   Previous MR scans have demonstrated quite significant labral pathology, but also some chondral wear and a benign chondroid-series tumour in the femoral head.

   Given Joanne's ongoing pain I think it is reasonable to repeat the MRI scan and check particularly that the chondroid-series lesion hasn't progressed. It will also give us an idea if there has been any deterioration in the appearance of the labral tear or other chondral wear.

   Given the recent flare up in her pain it might be worthwhile considering repeating the steroid injection in her hip. Surgery remains a possibility for Joanne's hip particularly hip arthroscopy and debridement of the labral tear, but again we could end up precipitating a hip replacement on Joanne, and for this reason we are a little reluctant to rush into surgery.

   I plan to see Joanne again with the result of the MRI scan.

   Report of Dr Dirk Sweeney, SKG Radiology, dated 8 February 2012 (T20)

4. This report reads as follows:

   MRI RIGHT HIP

   Clinical History: Labral tear (anterosuperior) and chondral wear with benign-appearing chondroid lesion right femoral head. Ongoing pain. ? Change.

   Technique: Axial and coronal PD and T2 (fat sat), sagittal T2 (fat sat).

   Findings: Comparison MR arthrogram 30/05/2011.

   Hip morphology appears normal.

   There is a persisting non-aggressive lesion at the anterior aspect of the femoral head which has typical features of a benign chondroid-series lesion.

   There is chondral thinning and subchondral cystic change involving the anterosuperior rim of the acetabulum.

   There is persisting diffuse high signal within the anterosuperior labrum (image 8-10 sagittal) with slight swelling of the labrum suggesting intralabral cyst formation.

   There is a further persisting full thickness tear through the base of the anterior labrum (image 11 axial) which is less well seen on this non-arthrographic study. Paralabral cysts adjacent to each tear are no longer visualised, probably reflecting lack of joint distension on this non-arthrographic study.

   There is a new tear of the lateral acetabular labrum (images 7-10 coronal) which is longitudinal in orientation.

   There is no effusion, synovitis or loose body within the joint space.

   The psoas tendon and iliopsoas bursa appear normal.

   Increased signal has developed within the posterior fibres of the distal gluteus minimus tendon (image 17 axial). There is low-grade enthesopathic bone change at the distal tendon insertion and low-grade oedema within the trochanteric bursa.

   The gluteus medius tendon appears normal.

   The pubic rami, hamstring origin and sciatic nerve appear normal.

   Comment: The current study is non-arthrographic.

   1.Persisting tear/intralabral cyst with in the anterosuperior labrum and a further full thickness tear through the base of the anterior labrum. Paralabral cyst at each of these locations on the previous study are either smaller or non-visualised, probably due to lack of joint distension (non-arthrographic study).

   2.New longitudinal tear of the lateral acetabular labrum.

   3.Non-progressive degenerative change involving the anterosuperior aspect of the acetabulum.

   4.Distal gluteus minimus tendinosis which developed with persisting enthesopathic bone marrow oedema and low-grade trochanteric bursitis.

   Report of Dr Sani Erak dated 22 March 2012 (T21)

5. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. She has had a repeat MRI scan done of her right hip showing persisting intra-labral tear/cyst and was reported as a new tear of the lateral acetabular labrum. There is persisting significant change around the greater trochanter and the gluteal tendons, and no change in the chondroid series tumour in her femoral head.

   Since I saw Joanne last she has somewhat improved. She does however continue to have persisting pain in her groin, and occasionally around her greater trochanter and in her lower back.

   Examination shows pain particularly in flexion and internal rotation of her hip.

   Joanne is making progress towards losing weight, which she feels has helped things. She still finds it difficult sitting more than an hour at a time and at present is not suitable to return to her previous job which involved standing and twisting on her hip. As such I have certified her unfit for work for a further three months. The situation could be reviewed if suitable alternate duties were made available to Joanne, and adequate breaks could be factored in so that she was able to stand and take a walk after an hour of sitting.

   In the meanwhile we will get a repeat steroid injection done into Joanne's hip, and I have given her a referral to have a repeat facet joint injection done as well if her back pain was to flare.

   I would like Joanne to continue with her hydrotherapy, and I plan to see her again in three months time.

   Report of Dr Sani Erak dated 28 June 2012 (T23)

6. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. She had a workplace injury in December 2009 where she has torn her labrum. She has ongoing pain in her groin but also some lateral sided hip pain and pain around her right L5/S1 facet joint.

   Joanne's symptoms are largely unchanged from when I saw her last. She is however finding the pain more intrusive in her life and it does interfere with more of her daily activities.

   She takes Panadol Osteo occasionally in addition to Celebrex regularly. She has had a steroid injection done into her L5/S1 facet joint a couple of months ago which did provide some temporary relief, in addition to her hip joint which again provided some temporary relief.

   Examination today shows quite marked irritation and pain in flexion and internal rotation of her hip.

   I have again outlined to Joanne that we could do a hip arthroscopy to debride the labrum, and there is approximately 70 - 80 per cent chance of an improvement in her hip, but perhaps a 10 - 20 per cent chance of no improvement and a small chance (perhaps 5 per cent or less) that we could make things worse and precipitate a total hip replacement.

   Joanne is coming around to the idea of surgical treatment, and will have a think about things over the next few months.

   I plan to see her again in three months time.

   In the meanwhile she is clearly not fit to return to her previous job which involved a lot of twisting movements on her hip. She would be suitable for sedentary occupations such as office type work.

   Report of Dr Sani Erak to Australia Post, dated 7 August 2012 (T24)

7. This report, addressed to an Australia Post claims manager at their request, reads as follows:

   In response to your letter dated 22 May 2012, I supply the following report.

   1.   What is the history provided at your examinations?

   I initially saw Ms Scotney on 6/5/2011. I noted her history that she was moving a case of wine whilst at work and felt a tearing sensation in her groin down to her knee, and subsequently had had pain in her groin, pubic region, the lateral region of her hip and her lower back. At that stage, she had already seen Dr Gee, a pain specialist, who had organised facet joint injections. She had also had a sacro-iliac injection, and had tried physiotherapy, hydrotherapy and Celebrex.

   Examination showed that she was tender over the pubic region, over her right lower lumbar facets and over the lateral aspect of her hip, but also had pain on flexion and internal rotation of her hip producing groin pain. At that stage, I thought that she may have some intra-articular pathology in her hip, such as a labral tear, and organised an MR arthrogram. I also noted that an MRI scan done of her pubic region had shown a cystic lesion in the femoral head and I organised a plain film of her hip to further evaluate that. Subsequent review was on 8/6/2011, where I reviewed the MR arthrogram of her hip, which showed a diffuse injury of the antero-superior labrum with intralabral and paralabral cyst formation, some sub-chondral cystic change in the acetabular rim, but otherwise no degenerative change, and a benign chondroid-series lesion or tumour in the anterior femoral head/neck junction. I thought at that stage the latter did not have any appearances of being an aggressive lesion and had quite probably been present for a while, and was not related to her symptoms. At that stage, I noted that her pain tended to be aggravated by spending a long time sorting parcels, which involved standing on her feet and twisting.

   Examination again showed pain on flexion and internal rotation. At that stage, I thought her symptoms were probably due to the labral injury to her hip and that she had developed a secondary trochanteric bursitis with some low back pain and pain in her pubic region secondarily. I organised for a trial injection into her hip, a trochanteric bursal injection, and a repeat facet joint injection at the right L5/S1 joint. I also suggested physiotherapy.

   My next review was on 20/7/2011. I noted that she had had the injections into her trochanteric bursa and facet joint, which had helped somewhat, but not completely alleviated the pain, and the hip joint injection had, after a couple of weeks, produced some relief of her groin pain. However, I noted that she was persistently sore with standing and twisting. I suggested trialling regular Panadol Osteo, anti-inflammatories, fish oil capsules, and physiotherapy and hydrotherapy.

   At that stage, whilst we were trying to settle her hip down, I thought it was reasonable for her to avoid any twisting movements in her hip and certified her unfit for work for six weeks. Given that she had not had a spectacular response to the intra-articular injection, of local anaesthetic and steroid into the hip, I was reluctant to undertake surgical treatment consisting of a hip arthroscopy at that stage, given that there was a small risk of precipitating worsening symptoms, which could force a hip replacement. At that stage, I made plans to see Ms Scotney again in six weeks and organised a CT scan to see if we could see any chondral wear in her hip a bit more clearly on that.

   Subsequent review was on 8/9/2011. At that stage, I noted her ongoing pain in her lower back, groin and lateral hip, her standing and walking distance was less than half an hour, despite regular analgesia and anti-inflammatories, and that she was still undertaking hydrotherapy.

   Examination again showed tenderness over the greater trochanter and pain on flexion and internal rotation. I thought it would be reasonable to repeat the injections, and again was reluctant to proceed with surgery at that stage.  I again certified her unfit for work.

   Subsequent review was on 3/11/2011. At that stage, I noted that she had lost 10 kg and had had the injections into her hip, which had improved a lot of her trochanteric bursal pain, but still had ongoing groin pain, and was taking regular analgesics.

   At that stage, I thought that she may not be able to return to her job at Australia Post, which involved a lot of time on her feet and repetitive twisting movements. Again, we discussed surgery, but both myself and Ms Scotney were reluctant to proceed because of the small risk of making things worse. I made plans to see her again in three months time. I again certified her unfit for work.

   My next review was on 1/2/2012. At that stage, I noted that she had a flare up of pain in December with more groin pain. She had quite marked pain with flexion and internal rotation of her hip, and I thought at that stage it would be reasonable to repeat the MRI scan to check that the chondroid-series tumour in her femoral head had not progressed.

   My next review was on 22/3/2012. At that stage, I noted the repeat MRI scan had shown persisting intra-labral tear/cyst and what was reported as a new tear of the lateral acetabular labrum, persisting change around the greater trochanter and the gluteal tendons, and no change in the chondroid-series lesion in her femoral head. At that stage, I noted that she had improved somewhat, but continued to have persisting pain in her groin and occasionally around her greater trochanter and her lower back.

   At that stage, I noted that Ms Scotney still had difficulty sitting for more than an hour, and was still unable to return to her previous job, which involved standing and twisting, and certified her unfit for work for a further three months. I did not, [sic] however, that the situation could be reviewed if suitable alternate duties were made available to Ms Scotney where adequate breaks could be factored in, so that she could stand and take a walk after an hour of sitting.

   My next contact with Ms Scotney was an email from her on 20/4/2012 saying that she had had a flare up of pain when she had twisted on her hip. She was going to organise to have a repeat facet joint injection done and a hip joint injection done.

   Subsequent review was on 28/6/2012. I noted that her pain was becoming more intrusive in her life, and interfering with more of her activities of daily living. The injections that she had had done had given her some temporary relief. She had quite marked irritability in movement of her hip.  Again, we discussed surgery and, whilst I quote Ms Scotney a 70%-80% chance of improvement in her hip, I also told her that there was a small chance of perhaps less than 5% that we could make things worse and precipitate a hip replacement At that stage, Ms Scotney elected to have a think about things, and I certified her fit for office type duties only.

   My next review of Ms Scotney was on 7/8/2012. She had had a think about things and had elected to proceed with hip arthroscopy. I noted at that stage that she was doing two hours per day, two days per week at work on restricted duties.

   2.In your opinion, from what specific medical condition does Ms Scotney currently suffer, specifically in relation to the incident as described in the Incident Report dated 20th December 2009 (copy attached)?

   I believe that Ms Scotney’s ongoing pain and symptoms relate to:

   2.1  Primarily the labral tear in her hip.

   2.2  A secondary "trochanteric bursitis”/gluteal tendinitis, as a result of an alteration in her gait.

   2.3  Facet joint arthropathy at the right L5/S1.

   2.4  A contribution of pain from pre-existing, but otherwise asymptomatic chondral pathology in the actual hip joint.

   Certainly, the predominant cause of pain, I believe, is the labral tear, and the history of twisting on her hip at work is consistent with this.

   3.If Ms Scotney suffered or suffers a medical condition, whether this condition:

   a.    was or is the result of the incident of 20th December 2009? OR

   b.    was or is an aggravation of an underlying or pre-existing condition to which the incident of 20th December 2009 has contributed? OR

   c.    was or is a naturally progressing underlying or pre-existing condition to which the incident of 20th December 2009 did not contribute? OR

   d.    was or is due to some other factor or factors, and if so, your advice as to these factors.

   I believe that Ms Scotney's primary cause of her pain, being the labral tear, was a direct result of the incident on 20/12/2009.

   4.If the condition nominated in answer 2 is the result of an aggravation of a pre-existing or underlying condition, is the aggravation of a permanent or temporary nature, and if temporary, when would it be reasonable to assume that the effects of that the effects of that aggravation ceased, or will cease?

   Not applicable.

   5.    What is the extent or severity of any current pathology?

   The current extent or severity is that she has an extensive labral tear of her hip, which is causing significant pain and interfering with her life, her ability to perform her normal duties at her previous employment with Australia Post, and now interfering with her activities of daily living.

   6.What is the natural progression of Ms Scotney's current condition?

   Despite a prolonged course of non-operative treatment, including numerous injections, analgesia, physiotherapy and hydrotherapy and weight loss, Ms Scotney's symptoms have not improved. I do not envisage that her pain will improve spontaneously from here, and, hence, we have elected to proceed with surgery.

   7.If Ms Scotney continues to suffer from a work-related condition, what rehabilitation and/or medical treatment is required and what is the expected frequency and duration of any recommended treatment?

   Ms Scotney will need to undergo a right hip arthroscopy. There is a reasonable chance of an improvement in her symptoms, but certainly this is not guaranteed, and there is perhaps a 20% chance of no improvement in her symptoms and a small chance of making her symptoms worse, precipitating a hip replacement.

   After the procedure, I anticipate Ms Scotney would be unfit for work for at least six weeks. She might be able to start a graduated return to work at the six week mark, and I anticipate her maximum level of improvement would take between six and twelve months. She will need ongoing analgesia, anti-inflammatories, physiotherapy and hydrotherapy, and often, if her hip is slow to settle down, she may require repeat steroid injections, either into her hip or into her greater trochanter.

   8.As you are aware Ms Scotney has been declared unfit for work. It is indicated that Ms Scotney is working an additional job working from 9am to 4pm and is not attending any work with Australia Post.

   (a)  Has Ms Scotney advised you of her other employment?

   Ms Scotney has advised me of her other employment, which is entirely sedentary.

   (b)   Should Ms Scotney be undertaking any other work given that you have certified her unfit for work?

   My most recent certificate and at the review prior to that, I had indicated that Ms Scotney could undertake sedentary duties, if adequate opportunity was given to her to change her posture or stand and walk to prevent her from a prolonged seated position.

   (c)   If you have answered yes to (b), please provide me with an understanding of your reasoning.

   I have had some contact recently with a return to work person from Australia Post, who has advised me that there are potentially duties that Ms Scotney could perform within the limitations that I have set out above. I think it would be not unreasonable to allow a progressive return to work within the limitations outlined above.

   Ms Scotney, at last review, had returned to work 2 hour a day for two days a week.

   (d)   What impact will working in the other job have on her condition given that she is declared unfit for work?

   Ms Scotney’s other occupation is a sedentary occupation where she is able to adjust her posture and position to alleviate her discomfort. I was not aware of suitable alternate duties being available to Ms Scotney through Australia Post previously, hence my certifications for being unfit for work. Her other job, being a sedentary job, would not necessarily impact on her condition, as long as she avoided positions that would aggravate her pain. Her other occupation would not alter the underlying pathology in her hip, being primarily that of the labral tear.

   (e)   When can she return to work with Australia Post, given that Australia Post can provide a variety of duties to suit many restrictions?

   I have currently certified Ms Scotney fit to return to work within Australia Post within the limitations outlined above.

   9.    What is your prognosis?

   Overall prognosis is a little guarded. I do not think that she will improve on her own accord, and I think it would be reasonable to consider hip arthroscopy at this stage. However, my experience with hip arthroscopies has been a little mixed in terms of returning people to work. There is certainly a chance that Ms Scotney may not improve after the surgery, and a small chance that she may worsen, and certainly a reasonable chance that she would not be completely relieved of all her symptoms.

   10.  Any other observations or comments you wish to make?

   No further comments.

   Report of Dr Sani Erak dated 7 August 2012 (T25)

1. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today. She continues to have pain around the right groin and has had a think about things. She wishes to proceed with hip arthroscopy now to deal with the labral tear.

   She was asking whether the lesion in the femoral head could be removed and I have explained to her that to do this we would have to make a cortical window, curette the lesion, bone graft it, and we are more likely to precipitate a problem with her hip by doing this rather than just leaving it at present. I think it would be wiser just to deal with the labral tear and then see what we are left with.

   I have outlined to Joanne the risks and rehabilitation involved in hip arthroscopy and she is in agreeance. She will need a minimum of six weeks off work after this.

   We will proceed with surgery on 13/9/2012 at St John of God, Murdoch.

   Report of Dr Matt Prentice, SKG Radiology, dated 5 September 2012 (T28)

2. This report reads as follows:

   MRI RIGHT HIP

   Clinical History: Painful right hip. Known labral tear. Benign chondroid lesion femoral head.

   ? Progression in size.

   Technique: Axial and coronal PD and T2 fat sat, sagittal T2 fat sat images have been obtained of the right hip. Comparison study 07/02/2012.

   Findings: There has been no significant change in size of the lobulated high signal lesion in the anterior aspect of the femoral head currently measuring 9 x 1.7x1.9cm. Again there are no aggressive features and appearances are most likely to reflect a benign chondroid series lesion. Cystic change related to the anterosuperior labrum is less prominent but still present with a small amount of persistent fluid tracking deep to the iliopsoas muscle belly and a fine tear in the anteroinferior labrum unchanged. Fine partial-thickness tear of the superolateral labrum is also unchanged. No progressive chondral loss. No hip joint effusion.

   Tendinopathic/enthesopathic change related to the gluteus minimus unchanged with mild overlying bursal oedema. Normal appearance of the gluteus medius and proximal hamstring plus distal iliopsoas tendon.

   Comment:

   1.    No change in anterior femoral head lesion most likely to be a benign chondroid series.           

   2.    Mild reduction in size of cystic change related to the anterosuperior labrum likely to reflect predominantly intralabral cyst formation. No change in hairline tear of the anteroinferior labrum or partial-thickness tearing of the superolateral labrum.

   3.    No significant change in gluteus minimus tendinopathy/enthesopathy or bursal oedema.

   Report of Dr Sani Erak dated 13 September 2012 (T30)

3. This report, addressed to Dr Evans, reads as follows:

   Joanne underwent right hip arthroscopy today at St John of God, Murdoch.

   At arthroscopy, an extensive antero-superior articular sided labral tear was noted and was debrided back to a stable base. The articular surfaces were well preserved. The ligamentum teres was thickened, and was debulked.

   Joanne has some sutures in, which I will remove when I see her for follow up at the two week mark.

   In the meanwhile, she can weight bear as tolerated.

   Report of Dr Sani Erak dated 13 December 2012 (T31)

4. This report, also addressed to Dr Evans, reads as follows:

   I saw Joanne today, now two weeks after we did a right knee arthroscopy, debrided an undersurface medial meniscal tear but also noted some chondral pathology in the medial facet of her patella, medial femoral condyle and to a lesser degree the lateral femoral condyle.

   Overall Joanne's knee is doing well. Her wounds have healed fine and I have removed the stitches.

   Her hip continues to be problematic and she has sharp catching episodes in her groin.

   It is now three months or so since we did the operation. She is steadily improving, doesn't use any analgesics but is still on Celebrex. She is seeing a physiotherapist. We sent Joanne for an adductor tendon origin injection, which did help somewhat, but unfortunately she didn't have a dramatic improvement from this injection.

   Joanne's catching pain in her hip is still in keeping with what I would expect post hip arthroscopy, but what is a little odd is this localised tenderness. I suggested that we get a psoas tendon injection done to exclude a psoas tendon impingement as the source of her pain, and I plan to see Joanne again in six to eight weeks to see how she is getting along. In the meanwhile she will continue with her physiotherapy for gluteal strengthening and quadriceps strengthening in addition to hip flexor and adductor stretches.

   Report of Dr Sani Erak dated 13 February 2013 (T32)

5. This report, also addressed to Dr Evans, reads as follows:

   I saw Joanne again today. We have arthroscoped her right hip five months ago but unfortunately Joanne continues to have significant groin pain. She feels it when she is weight bearing, and when she extends her hip. She takes regular analgesics such as Digesic and Celebrex. She is seeing a physiotherapist but has not noticed any improvement with this.

   When I saw her last I sent Joanne for a psoas tendon injection which inflamed things for the first couple of days, and then settled things down for a week or so at best but perhaps only 25 per cent improvement. She also had an adductor tendon injection done, which did not markedly help. However she did feel when the needle was in that this was the correct spot for her pain.

   Examination today shows quite marked restriction in flexion and internal rotation which reproduces her pain but also markedly tender over pubic tubercle.

   We will organise for an MR arthrogram to see what the state of Joanne's hip is post-arthroscopy and the injection of the local anaesthetic as a diagnostic test.

   I plan to see Joanne again with the result of the scan. If there is nothing obvious on the MR arthrogram and particularly if the local anaesthetic injection doesn't help her pain I will consider referring her to Peter Annear.

   Report of Dr Matt Prentice, SKG Radiology, dated 26 February 2013 (T33)

6. This report, addressed to Dr Erak, reads as follows:

   MR ARTHROGRAM RIGHT HIP

   Clinical History Right hip labral tear - hip arthroscopy 9/12, ongoing groin pain ? residual labral tear ? chondral wear.

   Technique: Written, informed consent, aseptic technique. 2 ml of 1% Lignocaine local anaesthetic to the skin and subcutaneous tissues overlying the above joint. A 23 gauge spinal needle was inserted into the joint under fluoroscopy guidance. Intra-articular position confirmed with iodinated contrast. 10 mls of dilute Gadolinium (in 5 mls of normal saline and 5 mls of 0,5% bupivacaine) was then injected with no immediate complications. The patient was then sent for MRI,

   Coronal PD and T2 (fat sat), axial T2 (fat sat), axial oblique T1 (fat sat), sagittal PD (fat sat) and sagittally acquired T2 TRUF13D with radial reconstructions.

   Findings: Comparison non-arthrographic MRI 4 September 2012.

   There has been no significant change in size of the lobulated high signal lesion in the anterior aspect of the femoral head since the previous study, again it measures approximately 0.9cm x 1.7cm x 1.9cm with speckled internal signal intensity likely to reflect chondroid matrix calcification. Today’s scan does however demonstrate at least a couple of tiny breaches within the overlying anterior cortex maximal interiorly with a tiny amount of intermediate signal intensity seen at this site on thin slice scans.

   The small linear focus of increased signal intensity on the previous study within the anteroinferior labral base is now more hyperintense (see axial image 10) consistent with a tiny residual partial-thickness tear, this does not appear to increase in signal on fine T1 fat sat suggesting lack of communication to the joint so it may not be visible at arthroscopy.

   A small amount of subchondral cystic change persists within the anterosuperior acetabulum (see axial image 6). There has been an alteration in labral morphology just posterior to this, presumed to reflect labral debridement (see coronal T2 fat sat image 5). There is a small amount of progressive increased signal intensity seen within the underlying subchondral bone at this site of uncertain significance. Allowing for post surgical change no definite recurrent labral tear at this site although resection margins may be mildly irregular.

   A small amount of fine increased signal persists at the labrocartilaginous junction of the central superior labrum consistent with a small amount of fine tearing. There has been slight alteration in the labral contour at this site, it is unclear if this is post surgical or secondary to slight displacement of a labral fragment (see coronal T2 fat sat image 10). There is a small amount of adjacent subchondral oedema. There are several small areas of chondral fissuring and early subchondral oedema seen within the acetabular roof, predominantly in the anterosuperior to central superior portion. Allowing for technical differences in the way the scans have been performed, I do not think this has progressed significantly. No changes on the femoral head.

   There has been a mild increase in fluid seen related to the gluteus minimus tendon medial border (axial image 17) with minimal increase in fine intrasubstance increased signal within the tendon, likely to reflect tendonopathy +/- a tiny amount of micro-tearing. No new high grade tear. There is further mild tendonopathy/enthesopathic change related to the gluteus medius unchanged. Only very mild greater trochanteric bursal oedema. Normal appearance of the distal iliopsoas tendon and proximal hamstrings.

   Comment:

   1.  Chondroid series lesion in the anterior femoral head again noted, breaching of the anterior cortex is now visible with the lesion more clearly outlined by intra-articular contrast. With a tiny amount of extraosseous sift tissue. In the absence of other changes, this is felt unlikely to be sinister but could reflect a small amount of pathological micro-fracturing. The changes could also be iatrogenic secondary to previous injections.

   2.  Multifocal changes related to the acetabular labrum with presumed post surgical change related to the area of anterosuperior labral tearing where the labrum has new altered morphology. Allowing for this, no definite new labral tear. Presumed persistent fine tearing at the central superior labrum with slight change in labral morphology of uncertain significance. Small intrasubstance tear of the anteroinferior labrum and a small amount of multifocal chondral fissuring with small areas of subchondral oedema and a small amount of cystic change in the anterosuperior acetabulum.

   3.  Mild progression of changes related to the gluteus minimus with a slight increase in fluid and minimal increase in intrasubstance high signal.

   4.  At the time of injection, l had suggested to Ms Scotney that we could review the adductor origin as this is another site for symptoms, I apologise but I did not convey this information to the MRI techs and the area has subsequently not been covered. I would be happy to arrange for a further scan of the symphysis pubis/adductor origins if this is felt clinically indicated and will ensure Ms Scotney is not out of pocket for this.

   Report of Dr Sani Erak dated 7 March 2013 (T34)

7. This report, addressed to Dr Evans, reads as follows:

   I saw Joanne again today with the MR arthrogram of her right hip. This shows some signal abnormality in the labrum, which may represent residual labral tearing. There is also a small amount of sub-chondral cystic change in the antero- superior labrum. There is a chondroid series lesion in the femoral head, described as being the same size.

   Joanne is having increasing pain in her hip, both a dull pain around the lateral aspect in her groin, but also sharp intermittent grabbing pains, which she finds the most distressing.

   Examination today shows pain in flexion and internal rotation, but also quite marked tenderness over the pubic tubercle.

   The local anaesthetic introduced into her hip at the time of the arthrogram did help her pain, although it wasn't complete. Certainly, the labral abnormality demonstrating on the MR scans may be causing some of Joanne's residual symptoms, or it may be originating from the chondroid lesion tumour in her femoral head (although there is no marrow oedema in the femoral head or neck to suggest this). A portion of her pain may also be coming from an abnormality in the muscles' tendons originating around the pubic symphysis or even an osteitis pubis.

   The MR arthrogram did not encompass the pubic symphysis or adductor tendon origins and we will organise a repeat MR of this region. I would also like to try a local anaesthetic and steroid injection into Joanne's hip.

   I would like to get an opinion from Mr Richard Beaver, tumour specialist, as to whether he thinks there is anything short of a hip replacement that could be offered for the chondroid lesion in her femoral head and to what degree he thinks this might be contributing to her symptomatology.

   To evaluate the pain around her pubic symphysis region, I would like to get an opinion from Mr Peter Annear.

   I plan to see Joanne again after she has seen Mr Beaver and Mr Annear.

   Briefing letter from Mr Sani Erak to Mr Richard Beaver dated 7 March 2013 (A1, p 19)

8. This letter reads as follows:

   I would be grateful if you could see Joanne as an opinion. She is a 44 year old lady who had a workplace related injury in 2009 whilst twisting on her hip. It subsequently transpired that she had a labral tear, but also a chondroid tumour in her femoral head. I followed this up with repeat MR scans and there did not appear to be a change in the size of the femoral head lesion. Because of Joanne's ongoing persisting pain, I eventually undertook arthroscopy to deal with the labral tear, which was undertaken in September 2012.

   Despite debriding a fairly extensive labral tear from which Joanne initially seemed to do quite well, Joanne has had increasing pain in her hip, which is a sharp, catching pain. A follow up MR arthrogram done just recently shows that the chondral tumour has not increased in size, but there are some breaches of the cortex antero-inferiorly. There is also a tiny amount of intermediate signal intensity tissue at this site.

   On the scans, there was also some residual signal abnormality in the labrum, which may represent some residual labral tearing.

   I am not sure how much of her symptoms are attributable to the chondroid tumour with possible breach of the cortex, as opposed to any residual labral abnormality.

   I would be grateful for your opinion regarding whether you think the chondroid tumour may be the cause of her symptoms. If you think it is, I can't see that surgery short of hip replacement would be indicated, but I wonder if you have had any experience with curettage and bone grafting of this particular lesion of the femoral head.

   I would be grateful for your opinion as to whether you think the chondroid lesion may be symptomatic and, if you think it is, how we best deal with it

   Report of Dr Peter Annear dated 15 March 2013 (T35)

9. This report, addressed to Dr Erak, reads as follows:

   Thank you for asking me to review Joanne, a forty-four year old who in 2009 sustained a twisting injury to her right hip when turning at work. She subsequently underwent arthroscopic debridements of the right knee and right hip.

   She has residual abnormalities within the femoral head and labrum and the right hip, and tier pain from the hip joint is consistent with this. She has retained movement however.

   Repeat arthroscopy may have a role. I think she is too good for hip arthroplasty.

   If a second arthroscopy didn't help if that was indicated, I would encourage to her [sic] assess her disability and settle her claim with respect to her hip once her symptoms have stabilised. It would be reasonable to take into account the need for hip arthroplasty in the future.

   With respect to her Iocalised sensitivity and tenderness around the right pubic body, I think it is unlikely this is related to the symphysis pubis. She is not particularly tender over the central area and I'm not sure of the explanation for her sensitivity. I think it would be reasonable to organise an injection of anaesthetic and cortisone into the symphysis pubis to help assess whether the sensitivity in the right pubic body relates to this.

   I will organise the injection and review her in two weeks.

   Her MRI scan and clinical presentation doesn't suggest an osteitis pubis type problem.

   I will let you know the results of the injection.

   Report of Dr Richard Beaver, Orthopaedic Surgeon, dated 21 March 2013 (A1, pp 21-23)

10. A written report was also received from Dr Richard Beaver, an orthopaedic surgeon who specialises in tumours.  Dr Beaver did not appear before the Tribunal and was not cross-examined in relation to his comments on Ms Scotney’s medical condition.

11. Dr Beaver’s report, addressed to Dr Erak, reads as follows:

    Thank you for asking me to provide an opinion regarding Ms Scotney. She is a 44 year old patient who is presently not working. At the time of her injury, she was working at a Post Office. While delivering, she twisted suddenly whilst carrying a carton of wine and she felt a tearing sensation through the right hip. Thereafter, she had subsequent pain in the groin radiating through the buttock and down the lateral side of the right thigh. This pain did not respond to various injections and physiotherapy and, ultimately, she came under your care.

    Further investigations including an MRI arthrography of the right hip revealed a labral tear. This was subsequently excised arthroscopically in September, 2012. Initially, the procedure proved beneficial to her but pain in the groin, buttock and lateral hip has persisted and has become worse. She has also noticed quite a lot of pain felt in the medial aspect of the groin. Pain in the right hip itself is made worse with activities such as movements of the hip, walking, running and lying on her side. Climbing stairs can be difficult.

    During the course of her investigations, a lesion was found in the femoral head of the right hip and has been monitored. This has been considered to be a chondroid lesion and has shown no interval changes in size in serial CT scans and MRI scans. But there is some scalloping of the cortex and some early tendency to breaching of the cortex in the inferior femoral head.

    On examination today, Ms Scotney walks with a slightly antalgic gait pattern. She has a marginally positive Trendelenburg test with fatiguing on the right. She has an almost full range of motion in the right hip joint although there is pain at extremes of external rotation, flexion and abduction. Tenderness is very difficult to localise today. She has a number of different points which are tender. She is quite tender over the anterior aspect of the greater trochanter. She is tender over the anterior aspect of the right hip joint itself. She is also tender over the superficial inguinal ring. I could not convince myself of a cough impulse.

    The provocation tests for gluteal tendinopathy are mildly positive.

    The overall impression is that Ms Scotney does have some irritability of the right hip joint itself and this is born out from the fact the recent injection of the hip joint with cortico-steroid has produced some benefit. Nonetheless, Ms Scotney still complains bitterly about the pain in the medial aspect of the groin around the superficial inguinal ring.

    I note an ultrasound has shown a small hernia in this area.

    Therefore, I think it would be very wise to obtain an opinion from a general surgeon with experience in hernia surgery as to whether this is significant.

    I have viewed all the imaging. I would characterise the tumour as a benign chondroid series tumour with some early cortical breach inferiorly. This, in itself, I would think, requires only monitoring. I do not think this is the source of her pain.

    I would suggest that a general surgical opinion be sought about the possible hernia.

    I also feel that Ms Scotney has mild gluteus minimus tendinopathy. This could be selectively injected under ultrasound with an injection being localised in the sub gluteus minimus bursa.

    I have pointed out to Ms Scotney that with labral tears, degenerative changes in the hip joint in the long term is common. It is probably not going to be influenced by arthroscopic treatment - although mechanical symptoms in the hip can be effectively treated in this way.

    I have discussed this with Ms Scotney and advised that she needs to discuss this with you.

    In the long term, as there are already early degenerative changes in the right hip, I would suspect that she will come to require a total hip replacement. Hopefully, this will not be required for at least ten years.

    Should there be any interval change in the chondroid lesion in the femoral head, this would be best managed by a total hip replacement with wide excision of the lesion.

    I wish you well with the management of Ms Scotney. She is a difficult management problem.

    Report of Dr Sani Erak dated 4 April 2013 (T36)

1. Dr Annear confirmed this diagnosis in oral evidence before this Tribunal (Transcript at 90-91).

   Dr Schutze

2. Dr Mark Schutze, a pain management specialist, has been involved in treating Ms Scotney’s chronic pain since November 2013. His oral evidence before this Tribunal was compelling in relation to the type of treatment options available to Ms Scotney should this Tribunal find that a hip replacement is not reasonable. 

3. Relevantly, Dr Schutze gave evidence that one of the few remaining options available for dealing with Ms Scotney’s chronic pain would be the use of opioid-based therapies, something he describes as undesirable.  The Tribunal notes the following exchange between Dr Schutze and counsel for Ms Scotney (Mr Nugawela) and counsel for Australia Post (Mr Cole) (transcript, pp 104–105, 108):

   MR NUGAWELA:  In fact, that’s in your first report at 131 and in your second report at 140?---Yes.  Yes, indeed.  So, sorry, did you have a question or - - -

   I do.  At 140 in your last sentence, you are of the view that her pain generator was mechanical pain which is deep-seated and aching and really is the most difficult to cope with?---Yes, that’s correct.

   Could you as a pain specialist provide any further help to her, or is it the case that she has to eradicate the mechanical pain via surgical procedure?---That’s a very broad question that you have asked.  I’m saying that I agree that she has the mechanical pain which has clearly been the major source of her pain problems and limitations.  In that regard, there are various options.  So certainly medication, and as I said in that paragraph, traditional analgesics such as Panadol or other stronger analgesics are one option.  Surgery would be another option.  I’m not saying that - so those are options, is what I’m saying to you.  Sorry.  Is that answering your question or do you want to ask the question again?  They are both options and they both have pros and cons.

   And in fact, escalating the medication regime into opioids can be habit-forming for an individual?---So yes, there are many potential complications of opioid therapy and it is a long-term therapy, so it definitely has its disadvantages as well.  …

   CROSS EXAMINATION BY MR COLE

   MR COLE:   Doctor, just on that last point, is the only medication management now available opioid therapy, or are there other options?--Medication-wise, my understanding is that Ms Scotney takes Tramadol, which is a weak opioid, and escalating above that would be to move to other stronger opioids.  Barring that, she has already trialled the other weaker analgesic options, so that would include paracetamol.  That would be after the first line, and the second time, reducing the anti-inflammatory-type medications, and then she has also trialled multiple other (indistinct)-type therapies which we would recommend.  So that’s the gabapentin, the Cymbalta, the clonidine, et cetera.  So I guess that’s a rather verbose way of answering your question, saying yes, of the analgesic medication available to us at the moment, the only other option for her would be to move to opioid medication, yes.

   RE-EXAMINATION BY MR NUGAWELA

   All right.  Now, lastly, the fluctuation of pain between three and eight out of 10, the escalation to stronger opioids whilst avoiding provoking activities, would you recommend that situation continues in this case, and that she not undergo the arthroplasty and increase her opioids?   I think that clearly long-term opioid therapy is undesirable and a loss of function in a (indistinct) middle-aged person is also undesirable.  If we have a treatment that is highly likely to be able to avoid opioid therapy and also improve function, then I think that would be a desirable outcome.  So I would be in favour of her having a hip replacement if we felt that - if the orthopaedic surgeon felt that that had a strong chance of improving her function and pain, which on all accounts they do, from reading all these reports, the fact that that would be the case. 

   Dr Hardcastle

4. Dr Philip Hardcastle was initially commissioned by Australia Post to undertake a paper review of Mr Scotney’s medical file in May 2015 (R2, Attachment 1). In his report, Dr Hardcastle concluded that a hip replacement for Ms Scotney was not a reasonable option. 

5. After Dr Hardcastle prepared his first report, he had an opportunity to see Ms Scotney.  He then gave Australia Post a second report in which he concluded:

   She has undergone a considerable amount of treatment with a lot of invasive injections and a number of surgical procedures and is now at the point where I would agree with Mr Wren and Mr Annear, that despite her young age one would need to consider a hip replacement as the next stage of management.

6. Elsewhere in the same report, Dr Hardcastle concluded:

   I accept Mr Alexeeff s opinion in relation to the excessive amount of investigations and treatment that has been undertaken and I would also agree with Mr Michael Wren (3 April 2014) that hip replacement, given her subjective symptoms and with her early hip degenerative osteoarthritis seen on the MRI (31 October 2014) that this hip replacement is not unreasonable in this situation, and that no further injection treatment needs to be considered given the excessive number of injections she has already had.

7. In oral evidence before this Tribunal, Dr Hardcastle stated his preference is to wait as long as possible to do a hip replacement because of the risk of complications.  He also expressed concerns regarding Ms Scotney’s mental state.  The Tribunal notes the following oral evidence from Dr Hardcastle in relation to whether Ms Scotney should have a hip replacement. Overall, he agreed that, in the circumstances described, a hip replacement for Ms Scotney would be warranted (Transcript at 133–134, 137, 140–141):

   The necessity for a total hip replacement - moving on - is there that she will - she’s got some degeneration.  That degeneration will gradually progress over a period of time.  It might be ten years, it might be longer, but if we look at about ten years she will probably degenerate to the point where the joint, when we look at an AP of the joint there’s narrowing and other features and at that stage she’s probably reached 60 - 62 which is about the average age for a hip replacement and at that stage, once you’ve seen that degeneration across a joint or - that’s more extensive across a joint then you know you’ve got no choice - the joint needs replacing and I just think that in Joanne’s case if every effort to try and delay the hip replacement is going to be for her long term benefit, because hip replacements causes scarring.  If there was a complication from the procedure it can be a disaster.  I’ve had a couple of friends who, you know, have been on the wrong end of the complications because, as I say to a patient, ‘If I do 100 of these, I have a 1 per cent complication rate - but if that 1 per cent is you - it’s 100 per cent.’

   And having had a hip replacement, it’s got a finite life?   No, they vary.  There are a lot of variable factors.  Hip replacements - the revision rates do vary depending on the type of hip replacement and the surgeon that - and, you know, a lot of them will go on, you know, I think there was one study I read there was a revision rate of 25 years of the femoral component I think it was, was 5 per cent.  So the hip replacements do last a long time - even the older Charnleys and Exodus that I used to put in, they last a long time.  It depends on the bone structure of the person, their activities.  I mean, if they go jumping off buildings and jumping on and off trucks all the time well then the hip replacement is going to have a shorter life span than someone who just does regular walking to keep their bone density, does some regular swimming to keep muscles strong and just maintains a normal type lifestyle.  If they sit at home and do nothing it’s worse because their bones get osteoporotic and the thing is more likely to loosen because you’re relying on the bone binding the implant and you’ve got to keep that bone around the hip replacement strong.  I hope that’s not been too confusing because I’ve covered quite a broad area quickly.

   …

   MR COLE:  One would expect that a hip replacement for a person of the age of 47 would give rise to a replacement at some point later in their life?   Not necessarily because as I said, 25 years, 95 per cent then so I think you’d say yes, there would be a maybe 30 - 40 per cent chance of that but the risk is still, you know, it’s relatively - you know, it’s still relatively low but I’d - it’s more - the reason I personally would prefer to delay them as long as possible is the potential complications and that group that don’t get the long hip - that something happens, they loosen early or some complication develops.  That’s why I prefer to sort of wait, unless there’s a real definitive - like you’ve got severe or moderately severe arthritis or you’ve got a fracture that’s given avascular necrosis or some definitive pathology.  But in Joanne’s situation I would be - because of the relatively - not normal, but good joint space she’s got there with pathology where the cam lesion is and the labral lesion is I’d be still trying to delay things as long as I could.

   …

   MR NUGAWELA: Would you defer to Dr Schutze, the pain specialist’s assessment of the pain?

   DR HARDCASTLE: It depends what he said.  I mean, I have every respect for him.

   MR NUGAWELA: I think it’s not unfair to say that his opinion - and my friend would object or I will be corrected - essentially - one of his opinions essentially was that, given that Ms Scotney has tried practically everything that she can try and given that he wouldn’t want to see her develop a high opioid dependency, the next best thing would be for the arthroplasty to proceed - to help her alleviate her pain?  

   DR HARDCASTLE: M’mm, that’s - that’s an accepted opinion.  I agree with you about the opioids.  I hate opioids.  I think they are well over-used and they lead themselves to their own problems.  In fact, I got to the point in my own clinical practice when I was operating was that if a patient had been on opioids for more than a year I wouldn’t operate because they were not better.  It doesn’t matter what I - how good my operation was, they - they were addicted to the drug and they needed the drug so hence I am very much against opioids for chronic pain management.

   …

   MR NUGAWELA: She also gave evidence that her pain can drop to 8 out of 10 but brought back down to at best 3 out of 10 with the cocktail of medications we’ve shown you?  

   DR HARDCASTLE:  M’mm.

   MR NUGAWELA: What I want to put to you is this - if an arthroplasty would give her a quality of life that eliminates most of her pain and increases her enjoyment of life - given that it potentially could last forever - the arthroplasty only - would you disagree with Mr Erak’s opinion that she is a candidate now for a total hip replacement?  

   DR HARDCASTLE: As I’ve said all along, from a subjective symptomatology point of view, she is a candidate.  I just have some concerns that she has got a high level of stress and anxiety there that I think - but I mean, if he wanted to do the operation tomorrow I wouldn’t stop him.  I would be saying exactly what I am saying now but I wouldn’t be saying no, despite, as I say, in her current mental situation, with the stress that she’s got, that I’d be concerned about her postoperative recovery.

   MR NUGAWELA: The other expert, Mr Alexeeff, said that there was no organic behaviour, no functional overlay.  She was not prone to exaggeration or embellishment.  These are all good signs for good indicators for a surgeon intending to operate?  

   DR HARDCASTLE: They’re good signs, yes, I agree with that.

   MR NUGAWELA: I think you make the point that psychiatry is not your area of expertise and you’d have to? 

   DR HARDCASTLE:  No.

   MR NUGAWELA: And so the subjective complaints which form the clinical picture, which is the most important picture, you say would warrant an arthroplasty with a small reservation that she appeared to you to be stressed?  

   DR HARDCASTLE: M’mm.

   Dr Alexeeff

8. Dr Michael Alexeeff is the orthopaedic surgeon asked by Australia Post to do an independent review of Ms Scotney.  He examined Ms Scotney on 28 May 2013 and prepared a report dated 19 June 2013 (T42).  His opinion was that there was no indication of the need for further hip surgery. He concluded:

   I would assume that all treatments undertaken to date have been approved by Australia Post. I am surprised at the number of surgical procedures undertaken, the number of investigations performed and indeed, that the abovenamed continues to attend for physical therapy.

   It would appear to me that the abovenamed has been over-investigated, over-treated and it is perhaps not surprising that she has now developed emotional lability with this likely being secondary to an associated non musculo-skeletal co-morbidity, as a result of her circumstances.

   The only treatment that I can see that might make a difference to her is the addressing of what has been described by her treating General Surgeon as a likely inguinal hernia.

   I don’t see the basis for ongoing physiotherapy continuing.

   There is no indication for further injections.

   There is no indication for consideration of further hip arthroscopic surgery, hip soft tissue surgery or knee surgery.

   The abovenamed should continue to see her general practitioner for all her primary health care needs.

9. The Tribunal notes that in relation to this examination, Dr Alexeeff provided his written opinion without access to any radiographic imaging.

10. On 12 May 2014, Dr Alexeeff provided a further written report to Australia Post (T63).  That report was provided without the benefit of a further physical examination of Ms Scotney. In that report, Dr Alexeeff commented:

    Unless there is compelling evidence of progressive hip arthropathy, I remain of the view that hip replacement in a forty five (45) year, old female, with unsupporting imaging, particularly in a compensable setting, appears to be an extremely controversial treatment to be undertaking, with the distinct possibility of the abovenamed's symptoms remaining unchanged afterwards.

    Is a hip replacement reasonable in the circumstances?

11. As noted above, in assessing whether a hip replacement is reasonable in these circumstances, the Tribunal received and/or heard evidence from five orthopaedic surgeons and a pain specialist. 

12. Of the five orthopaedic surgeons, four of them ultimately agreed that, in the circumstances, Ms Scotney should be permitted to proceed with hip replacement surgery. Hip replacement surgery is also supported by the only pain management and anaesthetist specialist who gave evidence.

13. This is overwhelming medical evidence in favour of hip replacement surgery. These doctors have exercised clinical judgement with experience in assessing Ms Scotney a suitable candidate for the operation having regard to the complexities in relation to her injuries.

14. Of the evidence provided by the five orthopaedic surgeons, the Tribunal was most impressed with and most assisted by Dr Erak.  The Tribunal notes that he is Ms Scotney’s treating consultant surgeon and notes his careful management of Ms Scotney over the years, demonstrated by a conservative approach of escalating therapy over a 6 year period, his clear mastery of all radiology relevant to these proceedings and his desire to obtain second clinical opinions from senior orthopaedic colleagues before committing to what is clearly a serious medical procedure for his or any patient.  

15. The Tribunal attaches considerable weight to the evidence given by Dr Erak.

16. Of the doctors who ultimately supported the hip replacement, the Tribunal notes that Dr Hardcastle did express reservations.  Specifically, Dr Hardcastle was concerned about the medico-legal process impacting upon Ms Scotney’s general psychological state. This is a legitimate concern and is to be expected from a diligent surgeon standing in Dr Hardcastle’s shoes.  However, the evidence before this Tribunal was that Ms Scotney was not prone to exaggeration and had been remarkably sensible throughout the course of her numerous treatments.  In these circumstances, the Tribunal attaches little weight to this concern, noting as well that Dr Hardcastle did ultimately agree that a hip replacement should be provided in an environment where other treatments were proving therapeutically ineffective.

17. The Tribunal attaches much less weight to the evidence provided generally by retired orthopaedic surgeon Dr Alexeeff – the only orthopaedic surgeon who did not ultimately support a hip replacement for Ms Scotney.  The Tribunal has particular concerns in relation to how Dr Alexeeff formed the opinions he formed.  Relevantly, Dr Alexeeff examined Ms Scotney within days of her undergoing an arthroscopy – less than ideal timing when asked to form a clinical opinion.  The evidence shows that he also provided his opinion based upon an incorrect understanding of the chronology of treatment and was unaware of Ms Scotney’s positive response to the last series of diagnostic injections (Transcript at 124). He was also not given important radiological imagery when he provided his opinion (Transcript at 117, 121). Further, unlike Dr Erak, Dr Alexeeff only examined Ms Scotney on one occasion. 

18. The Tribunal also takes very seriously the consensus of many of the expert medical witnesses before it of the risks associated with moving to “long-term” narcotic medications and its dependency co-efficients if the arthroplasty is not performed. It is noteworthy in this regard that Dr Hardcastle said he would never operate on a patient who had been on opioid medications long term. This makes Australia Post’s argument that Ms Scotney wait until she is older to get a hip replacement less than compelling.  Given the evidence of increased risk of infection and failure with pain relief through injections, this makes opioid use one of the only options left – a less than ideal “option” in the circumstances and one that should certainly be avoided where possible.

19. Applying the legal principles outlined above at paragraphs 93-95 and looking the evidence as a whole, the Tribunal finds that, in the circumstances, hip replacement surgery is reasonable for Ms Scotney.

20. The overwhelming medical evidence before this Tribunal shows that while “success” cannot be “guaranteed”, on balance there is strong evidence that the suggested procedure will prove successful and will do much to alleviate to Ms Scotney’s pain symptoms for many years to come. It certainly will not maintain the status quo. Indeed, the long term effect of this treatment is also clear from the evidence, offering Ms Scotney a benefit in the range of 15-20 years or perhaps even longer.  This is not an insignificant period of time in relation to pain relief.  Further, for the reasons outlined above, this option clearly outweighs the significant harms resulting from opiate dependency – an inappropriate treatment “alternative” in the circumstances.

21. The Tribunal finds based on the evidence before it that Ms Scotney’s hip joint is the main cause of her ongoing pain and that the requested hip replacement will assist therapeutically in alleviating much of the pain she experiences from her hip for years to come. It was contended by Australia Post that Ms Scotney has other pain separate from her hip pain which distresses her, and impacts on her activities and sleep and that none of those other pain problems will be improved by a hip replacement.  This is undoubtedly true but there is no jurisprudence that requires that a suggested medical option must alleviate all pain before it can be found to be reasonable in the circumstances.

22. While the cost of a hip replacement is certainly not insignificant, particularly if it has to be done again at some future date, costs in this regard are not the only factor the Tribunal needs to take into account when assessing the options available to Ms Scotney.

1. In relation to this issue, the Tribunal notes the significant recurrent cost with medication and pain management.  Before this Tribunal, Australia Post provided a medication list which showed an expenditure of in excess of $6,000 over an approximate one-year period (between 14/10/13 - 28/11/14) for medications alone.  Australia Post did not tender this document, advising that it would provide an updated costing of medications and treatment expenses.  It did not.  Australia Post did not object to questions in relation to this list being put to witnesses.  From the document provided and Ms Scotney’s own evidence (Transcript at 25-28), it can be inferred that the costs going forward of Ms Scotney’s pain management strategies are not insignificant. Nor are they desirable. In that regard, the Tribunal notes that Dr Hardcastle shook his head disapprovingly at Ms Scotney’s current pain management regime (Transcript at 136).

   CONCLUSION

2. The Tribunal determines that a right hip replacement procedure for the Applicant, Ms Joanne Scotney, is reasonable in the circumstance.

   DECISION

3. The Tribunal sets aside the Reviewable Decision of the Respondent dated 21 August 2014 and, in substitution therefor, decides that a right hip replacement procedure for the Applicant, Ms Joanne Scotney, is reasonable in the circumstances.

I certify that the preceding 139 (one hundred and thirty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

…………………[sgd]…………………………....................

Administrative Assistant

Dated 12 February 2016

Dates of hearing	23, 24, 25 November 2015
Date final submissions received	15 January 2016
Counsel for the Applicant	Mr B Nugawela
Solicitors for the Applicant	Friedman Lurie Singh
Counsel for the Respondent	Mr S Cole
Solicitors for the Respondent	Sparke Helmore Lawyers