Stepanov v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 370
•27 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Stepanov v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 370 |
CLAIMANT: | Nikolai Stepanov |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Tai-Tak Wan |
DATE OF DECISION: | 27 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor determined the claimant’s disputed treatment (right total hip replacement surgery) was not related to the injuries caused by the accident and was not reasonable and necessary in the circumstances; claimant lodged a dispute about treatment; Review Panel conducted its own examination; AAI Limited t/as AAMI v Phillips, Clampett v WorkCover Authority of NSW, Diab v NRMA Ltd, Allianz Australia Insurance Limited v Vella, Mahoney v J Kruschich (Demolitions) Pty Ltd, Craig v State of South Australia, Bugat v Fox, and Rodger v De Gelder applied; Held – MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor James Wong, dated 30 August 2024, that the following treatment and care: · right total hip replacement surgery proposed by Associate Professor Qureshi does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Nikolai Stepanov (Mr Stepanov), was injured in a motor vehicle accident (the accident) on 29 January 2020.
Mr Stepanov made a claim for statutory benefits against NRMA, the compulsory third party (CTP) insurer of the vehicle at fault.
A medical dispute about treatment, namely a right total hip replacement, has arisen in connection with that claim.
Mr Stepanov referred that dispute to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor James Wong certified that the right total hip replacement surgery proposed did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances.
Mr Stepanov lodged an application with the Commission seeking a review.
The President of the Commission convened this Panel to conduct the review.
LEGISLATIVE FRAMEWORK AND RELEVANT CASE LAW
Mr Stepanov’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the CTP insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer” in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
Unlike the previous scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The only mechanism for the claimant to recover the cost of treatment and care he says was caused by the accident is through the statutory benefits claim.
Section 3.24 provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(c) the reasonable cost of treatment and care,
...
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Causation of injury
The insurer is not liable to pay statutory benefits if the treatment in dispute does “not relate to the injury resulting from the motor accident”.
This clearly requires the Review Panel (Panel) to determine the injuries resulting from or caused by the accident (if there is a dispute about it) before determining whether the treatment relates to those injuries.
Treatment related to the injury resulting from the accident
The Panel notes the decision of AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 where the test of the relationship between surgical treatment and an accident was determined in a matter where the Motor Accident Compensation Act 1999 applied and where the claimant had sustained injury in three motor accidents. While a slightly different test applied under the 1999 legislation, the case remains relevant on the issue of “relationship”.
The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
Reasonable and necessary
In order for the insurer to be liable to pay for the treatment, the claimant must establish that the treatment is “reasonable and necessary in the circumstances”. The “reasonable and necessary” test is different to, and arguably stricter than the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 his Honour Justice Grove in Clampett v WorkCover Authority of NSW [2003] NSWCA 52, stated:
“[22] I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
[23] The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
While related to a different scheme and another test, the Panel considers these observations are relevant to our decision of whether Mr Stepanov’s surgery is “reasonable and necessary”.
In the circumstances
Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. The question of the relationship between accident and treatment is dealt with in the consideration of whether the accident caused the injury and the disputed treatment’s relationship to that injury, Therefore it may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury or a condition but if the injury or condition was not caused by the accident the claimant will not be entitled to statutory benefits for the treatment of that injury or condition.
The words “in the circumstances” in the context of whether a particular treatment is “reasonable and necessary” must therefore refer to the particular circumstances of the claim and the claimant in the proceedings before the Panel. As the members of another panel said in the matter of Allianz Australia Insurance Limited v Vella [2021] NSWPICMP 214:
“That may mean that a particular claimant has subjective requirements that may mean that some treatment for a specific injury is reasonable and necessary whereas the same treatment for the same condition of a different claimant may not satisfy the test”.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
ASSESSMENT UNDER REVIEW
Medical Assessor James Wong assessed Mr Stepanov on 21 August 2024 and issued his certificate on 30 August 2024.
The Medical Assessor says that he was referred the questions:
“1. Whether the right total hip replacement surgery proposed by A/Prof Qureshi in relation to the physical injuries is causally related to the injury sustained in the subject accident; and
2.Whether the right total hip replacement surgery proposed by A/Prof Qureshi in relation to the physical injuries is reasonable & necessary in the circumstances.”
At [7], Medical Assessor Wong took a history of the accident:
“[7] He submitted that on 29/01/2020, he was the driver wearing a seatbelt of his car when his car was hit from his right & deflected into a power pole by another car which did not give way to his.”
Regarding the history of symptoms and treatment following the accident, Medical Assessor Wong stated at [8]:
“[8] He said he did not see the other car coming at all. He said after the impacts he was in shock. After his shock had settled, he then managed to get out of his car by climbing through the window of his car door, as the door was damaged & could not be opened. He said he had pain in his neck, left chest, lower back, left knee & left ankle. He noted his left knee was obviously swollen & injured.
He said he did not feel or find his right knee was obviously injured (emphasis added) then. He said he did not have any pain in his left, or right hip, either. He said, after he got out of his car, he was able to stand, walk & take photographs of the accident scene; while he was waiting for the ambulance to arrive.
Subsequently, he was treated by the ambulance officer when they arrived; & was taken to the Liverpool Hospital where he was treated for 5 days, without need for surgery. For his injuries, he had analgesics; rehabilitation physiotherapy; & exercise physiotherapy. Later, he also had Psychological treatment & Rehabilitation assessment.”
At [10]-[11], Medical Assessor Wong set out current symptoms and current and proposed treatment:
“[10] He said he had headaches after he had his neck flexed for about 15 minutes, & some lower neck pain. He said he could not drive because of his neck symptoms. He said he had one mildly painful spot in his right lower lateral rib cage of unknown diagnosis or cause, & he was to check it with his treating doctors later. He said he did not have any other symptoms. He said otherwise he was very happy, as his right hip pain, & lower back pain had gone since he had his subject right total hip replacement (THR).
[11] He said he continued to have fortnightly physiotherapy to his chest & neck. He said his Psychological treatment had stopped in early July 2023, but he still felt stressed. He said now he only took 1 to 2 paracetamols with codeine for pain, about once a week. He said there was no other treatment proposed.”
Medical Assessor Wong set out his clinical examination at [12]:
“[12] He was not in distress. He said he was 175cm tall, weighed about 110k & was right handed. His gait was normal. He said he walked with his son from the Parramatta train station to my rooms, quite a number of blocks away, as he had not returned to driving because of his neck injury.
Lower extremity - He had no symptoms in his lower limbs at all. He said his left knee & right hip functions were normal to him now. His left hip was not injured & was normal to him.
Hips - He had no complaint there. Left hip range of motion was full & normal to him. Right hip range of motion was almost the same as his left, except on careful examination, his right hip adduction was a little less than that of his left. The posterior right buttock surgical scar for his subject THR had healed normally.”
At [14], Medical Assessor Wong reviewed the documentation he had been provided (1,149 pages of his clinical documents). He went through the documents and commented as to whether there was any specific record of a significant right hip pain. For example, with the Liverpool Hospital discharge referral of 3 February 2020, he commented that he was not able to find a specific record of Mr Stepanov having a specific and significant right hip pain.
Medical Assessor Wong looked at many documents including, for example, the bone scan report and found no evidence of an acute injury to the right hip.
The Panel will not repeat this material, but it is set out by Medical Assessor Wong on pages 6, 7, 8, 9, and 10 of his Reasons.
Medical Assessor Wong said at page 11 that there was no objective medical evidence provided or that he could find to indicate the impacts of the accident causing an injury to his right hip.
The clinical course did not provide any objective medical evidence of such an injury either to his right hip or to his right sacral-iliac joint.
Medical Assessor Wong commented that in his own statement, Mr Stepanov said that he first felt some pain in his right hip in September 2020, about seven to eight months after the accident while doing some rehabilitation exercises.
Medical Assessor Wong further commented that most clinicians and assessors would agree that any significant injury caused by a motor vehicle accident would manifest itself immediately, or within hours or days, but not weeks or months later.
Medical Assessor Wong further commented that the medical imaging did not provide any objective medical evidence to indicate that Mr Stepanov had an injury to his right hip caused by the accident,
On examination, Medical Assessor Wong found Mr Stepanov’s right knee to be normal, with a full range of motion. He did not find any residual sign of a significant injury to his right knee that could have led to an injury to his right hip.
Mr Stepanov did not state or confirm with Medical Assessor Wong that he had an injury to his right knee in the accident.
SUBMISSIONS
Submissions of the insurer of 5 December 2023
The Panel summarises the submissions of the insurer of 5 December 2023 by reference to paragraph numbers:
[4] The dispute concerns the insurer’s denial of funding for a right total hip replacement recommended by A/Prof Sol Qurashi.
[5]-[6] The insurer refers to s 3.24 of the Motor Accident Injuries Act 2017 (the Act), which sets out the entitlement to statutory benefits for treatment and care, including travel, accommodation, and reasonable treatment expenses.
[7] The insurer sets out the criteria for treatment and care to be considered reasonable and necessary.
[8]-[10] Part 3, Division 3.4 of the Act, and s 3.24 provide that treatment must be related to injuries caused by the accident. Disputes about this are medical assessment matters under Schedule 2.
[11]-[13] Mr Stepanov claimed statutory benefits against NRMA as the relevant insurer. Liability was accepted beyond 26 weeks on the basis that he was not at fault and had sustained more than a threshold injury.
[14]-[15] The insurer denied the request for right hip surgery in an undated letter. Mr Stepanov requested an internal review on 24 October 2023. The insurer upheld its decision on 7 November 2023.
[16] Mr Stepanov then lodged an application with the Commission for a medical assessment matter under Schedule 2(e) of the Act.
[17]-[18] Mr Stepanov is a 63-year-old male who was involved in a high-speed accident on 29 January 2020, where another vehicle failed to give way and collided with his, deflecting it into a power pole. Airbags deployed.
[19]-[21] Mr Stepanov self-extricated via the driver-side window. He was admitted to Liverpool Hospital from 29 January to 3 February 2020 with cervical spine tenderness and knee bruising. Imaging revealed minor injuries with no spinal cord compression.
[22]-[23] Neck pain was the main concern. He wore a neck brace and was advised conservative management for a C6 fracture. Imaging was otherwise unremarkable.
[24]-[26] On 5 February 2020, Mr Stepanov presented to Dr Sor, who later confirmed sternum, cervical spine, rib, and left knee injuries. MRI confirmed a partial MCL tear in the left knee.
[27]-[28] Mr Stepanov also saw a chiropractor for cervical and knee injuries, and began physiotherapy on 1 July 2020. He had limited tolerance for sitting, walking, and daily activities.
[29]-[30] On 26 May 2021, Mr Stepanov was referred for a right hip X-ray and later referred for pain management in September 2021.
[31]-[33] Dr Bodel’s report (13 October 2020) noted initial complaints of neck, chest, knee, and ankle pain with later development of lower back pain. He confirmed fractures, MCL tear, and reasonable recovery, with no surgical need.
[34]-[35] Dr Richmond at Southwest Pain Clinic documented complaints of occipital headaches, sternal and knee pain, right groin pain, PTSD, depression, and hip osteoarthritis aggravation.
[36]-[37] Dr Mitchell (9 March 2022) diagnosed soft tissue pain in the absence of objective injury. She considered prognosis good, with no need for further treatment related to the accident.
[38]-[39] Dr Khan (16 October 2022) stated rib, sternum, and clavicle fractures healed. Right hip pain reportedly began in September 2020 during exercise physiology. Imaging showed mild OA.
[40] Dr Berry (1 March 2023) noted right hip pain began in September 2020 and affected toileting and self-care.
[41]-[42] Dr Sor confirmed accident-related injuries (C6, sternum, clavicle, knee, back), noting that right hip pain developed later. Imaging in July 2021 showed osteoarthritis.
[43]-[45] On 7 September 2023, Dr Robinson referred Mr Stepanov to Dr Qurashi due to advanced right hip OA. She noted rapid OA progression and believed the accident substantially contributed to it. Surgery was recommended due to pain and severe motion restriction.
[46]-[47] The insurer reiterates that under s 3.24, the insurer is only liable for treatment that is reasonable, necessary, and causally linked to the accident.
[48]-[50] The insurer disputes that the right hip OA or the proposed hip replacement are related to the subject accident. Mr Stepanov reportedly developed right hip pain in September 2020 during rehabilitation, several months post-accident. No reports of hip pain were made during the initial hospital stay. The insurer submits that the hip replacement relates to a degenerative condition and is not reasonable or necessary treatment for injuries from the motor accident.
Submissions of the claimant of 4 October 2024
The Panel summarises the submissions of Mr Stepanov of 4 October 2024 by reference to paragraph numbers:
[1]-[1.3] Mr Stepanov submits that the application is brought pursuant to s 7.26 of the MAI Act and was lodged within 28 days of the issuing of the assessment.
[2.1]-[2.2] Mr Stepanov submits that the Assessor erred in finding the right hip injury not being caused by the motor accident, relying solely on the absence of direct trauma and rejecting the proposed right total hip replacement as unrelated.
[2.3]-[2.5] Mr Stepanov submits that the Assessor failed to properly apply the causation test in cl 6.7 of the Motor Accident Guidelines, which considers whether the injury was caused or materially contributed to by the accident, not whether it was directly caused. The claimant argues that the Assessor considered only direct injury and failed to consider indirect causes such as treatment-related injury.
[2.6] Mr Stepanov submits that even if the right hip injury arose during rehabilitation, the causal chain would remain unbroken and cannot be classified as a novus actus interveniens, (Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522).
[2.7] Mr Stepanov submits that the Assessor failed to apply the correct legal test for causation and thus committed jurisdictional error by asking the wrong question (citing Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163).
[2.8] Mr Stepanov submits the Assessor erred in relying on the absence of contemporaneous evidence of injury as determinative on the issue of causation (Bugat v Fox [2014] NSWSC 888).
[3.1]-[3.2] Mr Stepanov submits that the Assessor failed to respond to a substantial argument raised in Mr Stepanov’s solicitors' letter dated 10 April 2024, which was admitted with consent and raised three alternate bases for the right hip injury: direct trauma, altered gait, and treatment-related onset.
[3.3]-[3.4] Mr Stepanov submits that the Assessor failed to acknowledge or address these alternate allegations in the Certificate, referencing only late medical reports, thereby failing to engage with a central issue.
[3.5] Mr Stepanov submits that the failure to address the alternate bases for causation amounts to jurisdictional error and a denial of natural justice, citing Rodger v De Gelder [2015] NSWCA 211.
[4.1]-[4.4] Mr Stepanov submits that the Assessor made adverse findings regarding inconsistencies in the date of onset of the right hip injury but failed to put those inconsistencies to the claimant for comment or clarification.
[4.5] Mr Stepanov refers to s 6.41 of the Motor Accident Guidelines, which imposes an obligation on the Assessor to bring such inconsistencies to the injured person’s attention to ensure procedural fairness.
[4.6]-[4.7] Mr Stepanov submits that comments made by the Assessor regarding consistency do not satisfy this duty, as no opportunity was given to respond to the perceived discrepancies.
[4.8] Mr Stepanov submits that the failure to provide this opportunity deprived him of procedural fairness required under the Guidelines.
Reply submissions of the insurer of 24 October 2024
The Panel summarises the submissions of the insurer dated 24 October 2024 by reference to paragraph numbers:
[2] The insurer highlights the High Court’s decision in Wingfoot, which confirms that a medical assessor must form and give their own opinion on the medical question referred. The assessor’s role is not arbitral or adjudicative and there is no obligation to explain why a different opinion was not formed.
[3] The insurer submits that these principles were applied in Fitzpatrick and Pinarbasi, where it was held that an assessor must consider all relevant material, including examination results and submissions, but is not bound to adopt or choose between the parties’ medical opinions.
[4] The insurer refers to Pinarbasi and Marsh, cautioning against assuming material error solely because an assessor reaches a different conclusion from the experts relied on by the parties.
[5] Consistent with the above authorities, the insurer submits that Assessor Wong considered the parties’ submissions (p 2), noted the additional documents ([4]), and addressed relevant matters across [6]–[18], including Mr Stepanov’s pre-accident history, accident mechanism, symptoms, post-accident conditions, current and proposed treatment, examination findings, and causation.
[6] The insurer highlights the following findings from the Assessor’s reasons:
(a) The 29.01.2020 accident was not a mechanism of injury for the right knee; there was no objective evidence.
(b) No medical evidence of injury to the right hip or SIJ caused by the subject accident. The Insurer sets out the documents upon which it relies upon this claim.
(c) A frank injury would have presented immediately or within days—not months later.
(d) Mr Stepanov first felt hip pain 7–8 months later during rehab exercises, as per his February 2023 statement.
(e) X-ray from 06.07.2021 showed bilateral osteoarthritis with no fractures or lesions. Dr Robinson (07.09.2023) reported moderate OA in both hips.
(f) Right knee exam was normal; altered gait from a knee injury was not observed.
(g) Assessor Berry (01.03.2023) stated symptoms were arthritic, not trauma-related.
(h) The Medical Assessor critiqued Dr Robinson’s reports (07.09.2023; 07.02.2024) and was not persuaded.
(i) Dr Qurashi’s 28.09.2023 report supported THR due to osteoarthritis, with no accident link.
(j) Dr Van der Wall’s 11.11.2023 report did not demonstrate SIJ injury in imaging or records; theory of secondary degeneration was unpersuasive.
[7] The insurer notes the allegations in Ground 2 regarding errors in causation but maintains that the submissions do not establish any material error in the Assessor’s reasoning.
[8] In response to [2.8], the insurer submits that the Assessor’s reasoning extended beyond the absence of contemporaneous evidence, contrary to the reliance on Bugat v Fox.
[9] The insurer submits that, when the Certificate is read as a whole, the Assessor considered the mechanism of injury, imaging, competing medical opinions, and formed an independent view that the accident did not cause a right hip injury.
[10] Therefore, the insurer submits the submission that the absence of early complaints was determinative is not supported.
[11] The submissions at [2.5]–[2.7] focus on an alleged injury during rehabilitation in September 2020 and suggest it maintains the chain of causation.
[12] The insurer submits that it was for Mr Stepanov to establish that a frank injury occurred during that rehab session.
[13] A statement made in February 2023, nearly three years post-accident, is insufficient to establish such an injury.
[14] The insurer notes that the first recorded hip complaints are from March 2021, one year and two months after the subject accident. The insurer relies on clinical notes of Dr Sor from 30.03.2021 and 30.04.2021.
[15] The insurer submits that the records reflect awareness of degenerative pathology, not a rehabilitation-caused injury. Certificates of Fitness from that time do not reference the hip.
[16] There is a material difference between experiencing pain from underlying pathology and that pathology being caused or worsened by treatment.
[17] The insurer submits that Mr Stepanov’s evidence does not satisfy the burden of showing the accident or treatment caused, aggravated, or accelerated the hip pathology:
(a).The alleged frank injury from the accident was rejected.
(b).Dr Robinson’s suggestion of rapid deterioration was not accepted.
(c).Theory of force transfer from knee to hip was unpersuasive.
(d).Dr Van der Wall’s theory of SIJ-related degeneration was rejected.
(e).Gait-related causation was not supported.
(f).Rehab-related causation was also unpersuasive.
[18] The Assessor concluded the proposed THR was due to osteoarthritis and its natural progression.
[19] The insurer submits this conclusion was open to the Assessor, particularly given Dr Qurashi’s report and supporting imaging.
[20] The insurer adds that the Assessor specifically addressed and rejected the rehabilitation-based theory of causation (see [21]–[22]).
[21] The Assessor acknowledged Mr Stepanov’s statement claiming new right hip pain during lunges in September 2020 but found no supporting records until March 2021. The 16.09.2020 certificate did not mention hip issues.
[22] When read as a whole, the Assessor’s reasoning confirms that the osteoarthritis was not caused or worsened by either the accident or rehabilitation. The insurer highlights:
(a).No pelvic fracture on CT scan.
(b).Bone scan showed no acute hip injury.
(c).X-ray showed OA only, not trauma.
(d).Dr Robinson’s opinion lacked injury evidence.
(e).Dr Qurashi cited OA as the sole reason for THR.
[23] The insurer responds to Ground 4, which concerns alleged inconsistencies in the record of hip complaints between Mr Stepanov’s statement and medical records.
[24] The insurer submits that cl 6.41 of the Guidelines applies only to permanent impairment assessments, not to treatment and care. No legal basis is cited for extending its application here.
[25] The insurer disputes that the Assessor made any implied inconsistency finding:
(a). The 24.02.2020 bone scan does not mention the hip or SIJ.
(b). Dr Bodel’s reports did not review or examine the right hip; Mr Stepanov did not report hip symptoms to him.
[26] The insurer submits that it is not the Assessor’s obligation to explain why certain injuries were not raised by Mr Stepanov in medical reports commissioned on his behalf.
[27] The insurer submits that the Assessor’s reasons must not be assessed with a mindset inclined to find error (IAG v Keen).
[28] The Assessor accepted that Mr Stepanov’s hip symptoms arose months after the accident but did not find there was any frank injury in the accident or rehabilitation.
[29] The insurer submits the Assessor made findings of fact supported by evidence and gave sufficient reasons, consistent with NRMA Insurance v Keen [2021] NSWCA 287.
[30] Accordingly, the Delegate is not required to refer the matter to a Review Panel under s 7.26 of the Act or Meeuwissen v Boden.
[31] The insurer respectfully requests that Mr Stepanov’s application for review be dismissed.
[32] If the Delegate is otherwise persuaded, the insurer refers to its original reply submissions [R1], the PIC Certificate, and these further submissions.
[33] The insurer submits that, given the alleged mechanism of injury during rehabilitation, Mr Stepanov would likely have required the right THR regardless of the accident or rehab.
RE-EXAMINATION BY THE PANEL
Medical Assessor David Gorman examined Mr Stepanov on behalf of the Panel on 18 March 2025. The Panel refers to his report below.
Pre-accident medical history and relevant personal details
Mr Stepanov is a 64-year-old man who worked in the Australian Taxation Office for much of his working life.
He is right-handed
He is married with two sons.
He is a non-smoker and has an occasional red wine with meals.
He retired at the end of 2023 with mainly psychological issues. He was physically and psychologically unable to keep working. He was depressed, could not sleep and was at times suicidal.
He stated that the depression built up after the subject car accident. He had not had depression previously.
He said he had no right hip problem before the subject motor vehicle accident and he had been actively doing martial arts.
Notation: the Panel has not reproduced the history which Medical Assessor Gorman took of the accident as it would add nothing to the history already given above.
History of symptoms and treatment following the motor accident
Mr Stepanov was a restrained driver in a car hit by another car from his right and hit a power pole on 29 January 2020. He said, after he got out of his car, he was able to stand, walk and take photographs of the accident scene while he was waiting for the ambulance to arrive which he said took 40 minutes. He recalls his left ankle was initially painful but soon his neck pain escalated.
He was treated by the ambulance officer when they arrived and was taken to the Liverpool Hospital where he was treated for 5 days. He had a swollen left knee and bruising of the left ankle. It was in the Covid pandemic and he said that the hospital was "in chaos".
When he left the hospital, he still had severe neck pain. Later investigations revealed a fractured clavicle and ribs as well as a C6 fracture.
He could not bend his neck or back and could not even put his socks or underpants on.
He had analgesics, physiotherapy and exercise physiology.
Later, he also had psychological treatment. The treatment was mainly over Zoom during the Covid pandemic.
He had left eye problems and was not confident driving until a few weeks before this assessment. He had left cataract surgery in November 2024 and right cataract surgery in December 2024.
Details of any relevant injuries or conditions sustained since the motor accident
About eight months after the accident, in September 2020, Mr Stepanov noted pain in his right hip doing "lunge" exercises.
On 30 March 2021, 14 months after the motor vehicle accident, his general practitioner (GP) noted his rehabilitation exercises for his injured regions also caused pain in his right groin.
On 06 July 2021, X-ray of his pelvis and right hip was reported to show: "osteoarthritis in both hip joints with associated mild subchondral cystic change in the superolateral aspect of the right acetabulum."
He was referred to a hip surgeon with the ongoing hip pain.
Eventually, he had the subject right total hip replacement surgery on 7 November 2023.
Current symptoms
He continued to improve after the hip replacement.
His main symptoms are the neck pain and pain on thoracic rotation.
His right hip is only minimally symptomatic.
He said he had headaches after he had his neck flexed for about 15 minutes and some lower neck pain. He said he could not drive until recently because of his eye and neck symptoms.
Current and proposed treatment
He only has occasional analgesics.
He continues to have three weekly physiotherapy.
His psychology treatment had stopped in early July 2023 but he still felt stressed. His wife helps support him.
Clinical examination
General presentation
He was 175cm tall and weighed 109.7kg. He says that he is exercising more and losing weight.
Cervical spine
He had limitations in extension and turning to the left.
Flexion was to ¾ normal, extension to ¼ normal with rotation to the left to ¼ normal and to the right ½ normal.
Power, sensation and reflexes were normal in the upper limbs.
Lower extremities
He had minimal symptoms in his lower limbs at all.
Left hip and right hip range of motion were equal and normal.
Both knees were normal on examination with equal and normal range of motion, no swelling and no ligamentous instability.
The posterior right buttock surgical scar for his subject total hip replacement had healed normally.
There was psoriasis on his left knee.
Summary of relevant radiological and medical imaging and other investigations
After the subject motor vehicle accident, while at the Liverpool Hospital, he had CT pelvis which was reported to show no fracture, or any injury to his right hip caused by the subject motor vehicle accident. Almost one month later, on 24 February 2020, he had a whole body bone scan with SPECT/CT. It was also reported to show no injury to his right hip caused by the motor vehicle accident.
About 17 months after the motor vehicle accident, on 06 July 2021, he had X-ray of his pelvis and right hip. It was reported to show osteoarthritis in both hip joints.
On 7 September 2023, Professor Robinson said his right hip MRI demonstrated advance osteoarthritis.
In Professor Van der Wall's bone scan report dated 11 November 2023, over three years after the motor vehicle accident, did not show any acute injury to his right hip caused by the motor vehicle accident.
Treatment and care – causation
There was no objective medical evidence to indicate the impacts of Mr Stepanov's motor vehicle accident had caused an injury to his right hip. It was not immediately painful. It was not positive on bone scan and there were no fractures present.
He stated that he himself first felt some pain in his right hip in September 2020, about seven to eight months after his motor vehicle accident, while doing some lunges at rehabilitation exercises.
In the rehabilitation physician Dr Assem's report dated 27 August 2021, there was no mention of Mr Stepanov having a right hip injury caused by the motor vehicle accident.
In the Personal Injury Commission’s (Commission) Medical Assessor Dr Neil Berry's certificate, dated 1 March 2023, over three years after the subject motor vehicle accident, he concluded: that the claimant developed right hip pain while undergoing rehabilitation exercises after the MVA and "it would be that the hip is arthritic and this is the cause of his symptoms rather than the motor accident."
In the orthopaedic surgeon Dr James Bodel's two reports, dated 13 October 2020, over eight months after the motor vehicle accident, and on 1 October 2021, over 20 months after the motor vehicle accident, the surgeon did not find Mr Stepanov had a right hip injury caused by the motor vehicle accident.
The Panel has considered the sport and exercise physician Professor Robinson's report, dated 7 September 2023. Professor Robinson noted he had moderate osteoarthritis in both his hips on his X-ray in 2021. The Professor said his subsequent right hip MRI demonstrated advanced osteoarthritis. She then opined that "the very rapid deterioration of the osteoarthritis leaves me in no doubt that the car accident was a substantial contributing factor to the right hip osteoarthritis." The Panel disagrees with this and does not agree that the subject motor vehicle accident could have aggravated the right hip osteoarthritis nor could it have accelerated its development.
In Professor Robinson's further report dated 7 February 2024, she opined that at the subject motor vehicle accident, Mr Stepnov had received a direct force transmitted from the knee with impact through the femur and into the hip. However, the left knee was the one which was injured and swollen, not the right knee.
The Panel believes that although the aggravation occurred at the time of exercises, the osteoarthritis was already present. The Panel believes that the exercises made the right hip symptomatic. It did not cause the arthritis and therefore did not cause the need for the subsequent hip surgery. The "lunge" exercises merely made the hip symptomatic -they did not cause the need for surgery.
In summary, the Panel believes that Mr Stepanov had bilateral hip osteoarthritis which became symptomatic during exercises in 2020/2021. The subject motor vehicle accident did not cause the osteoarthritis nor did it cause any aggravation of the osteoarthritis.
The Panel finds the right total hip replacement surgery proposed by Associate Professor Qurashi is not causally related to an injury sustained in the subject motor vehicle accident.
Treatment and care – reasonable and necessary
Medical Assessor Gorman finds the right total hip replacement surgery proposed by A/Professor Qurashi not causally related to an injury sustained in the subject motor vehicle accident. The Panel also finds that it is not reasonable and necessary in the circumstances.
Medical Assessor Gorman recounted that there was no objective evidence to indicate the impacts of Mr Stepanov’s accident on his right hip, it was not immediately painful. It was not positive on bone scan and there were no fractures present. Mr Stepanov himself stated that he first felt some pain in his right hip in September 2020, about seven to eight months after the accident while doing some lunges during rehabilitation exercises.
As with Medical Assessor Wong, Medical Assessor Gorman went through the documentation, looking for objective evidence of reports of a right hip injury. For example, Dr Assem’s report of 27 August 2021 made no mention of a right hip injury.
Medical Assessor Gorman noted that Dr Neil Berry, in his certificate of 1 March 2023, that is over three years since the accident, concluded that Mr Stepanov developed right hip pain whilst undergoing rehabilitation exercises after the accident. Dr Berry noted:
“It would be that the hip is arthritic and this is causing his symptoms rather than the motor accident.”
Similarly, Dr James Bodel in his report of 13 October 2020, and 1 October 2021, did not find that Mr Stepanov had a right hip injury caused by the accident.
Medical Assessor Gorman and the Panel considered the report of Professor Robinson of 7 September 2023. Professor Robinson noted that Mr Stepanov had moderate osteoarthritis in both of his hips on his X-ray in 2021. Professor Robinson said his subsequent right hip MRI demonstrated advanced osteoarthritis. Professor Robinson was of the opinion that:
“It seems likely that Nick had some low grade mild degenerative change of the right hip pre car accident. However the advanced nature of his disease at this point and the very rapid deterioration of the osteoarthritis leaves me in no doubt that the car accident was a substantial contributing factor to the right hip osteoarthritis.”
The Panel has considered the comments of Professor Robinson cited above and does not agree the accident could have aggravated the right hip osteoarthritis or accelerated its development, nor was it or could it be a substantial contributing factor to his right hip osteoarthritis. The accident is unlikely to have injured the hip. It was his left knee and ankle which was symptomatic after the accident. If there was injury which aggravated osteoarthritis it would show significant increase uptake on the Bone Scan of 24 February 2020 which it was not. On the other hand the second bone scan of 26 July 2023 (three and a half years later) showed significant uptake at right hip suggesting causes other than the subject motor vehicle accident causing the symptoms.
The Panel noted that in Professor Robinson’s further report of 7 February 2024, she opined that in the accident, Mr Stepanov had received a direct force transmitted from the knee, with impact through the femur and into the hip. The Panel notes, however, contrary to this opinion, that it was the left knee which was the one that was injured and swollen, not the right knee.
The Panel considers that the aggravation occurred at the time of exercise with the osteoarthritis already present. The Panel believes that the exercises made the right hip symptomatic, but it did not cause the arthritis, and therefore did not cause the need for subsequent hip surgery.
The lunge exercise merely made the right hip symptomatic, but it did not cause the need for surgery.
In summary, the Panel believes that Mr Stepanov had bilateral hip osteoarthritis which became symptomatic during exercises in 2020/2021. The accident did not cause the osteoarthritis, nor did it cause any aggravation of it.
CONCLUSION
The Panel finds that the right total hip replacement surgery proposed by Associate Professor Qureshi was not causally related to any injuries sustained in the accident, and that the right total hip replacement surgery is therefore not reasonable and necessary in the circumstances.
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