TAC Claims and Pre-Existing Hip Pain | Piedimonte v TAC
9 min read
6 October 2023
In Piedimonte v Transport Accident Commission [2023] VCC 1698, the County Court of Victoria considered whether a transport accident caused or significantly contributed to a right hip labral tear and subsequent osteoarthritis.
Ms Piedimonte had experienced some hip pain before the accident. However, the Court accepted that her post-accident symptoms were different in their nature, location and severity.
The Court found that the accident caused or significantly contributed to the labral tear and that the tear most likely led to the development of osteoarthritis and the need for a total hip replacement.
Ms Piedimonte was granted leave to commence common law proceedings for pain and suffering and pecuniary loss damages.
Background
Ms Piedimonte was involved in a transport accident on 1 April 2016 when her stationary vehicle was struck from behind.
She sought leave under section 93(4) of the Transport Accident Act 1986 (Vic) to commence common law proceedings in relation to injuries affecting her right hip. At the hearing, she discontinued a separate claim based on psychiatric injury.
Following the accident, Ms Piedimonte experienced persistent and worsening pain in the right hip joint, groin, front and side of her hip, and front of her thigh.
An MRI performed in August 2016 identified:
a chronic tear of the anterior superior labrum;
trochanteric bursitis; and
associated tendinopathy.
A further MRI in June 2019 showed osteoarthritis, cartilage changes, the labral tear, joint effusion and synovitis.
Ms Piedimonte underwent steroid, cortisone and platelet-rich plasma injections. She also used prescription and over-the-counter pain medication. A total hip replacement was recommended, but she delayed the surgery because of the rehabilitation requirements and her responsibilities as the primary carer of her young daughter.
What was Ms Piedimonte’s condition before the accident?
Ms Piedimonte had an extensive medical history, much of which concerned her spine. She had disc bulges and herniation and underwent a microdiscectomy in 2008.
She had also attended osteopaths regularly before the transport accident. The osteopathic records contained numerous references to pain, stiffness or treatment involving one or both hips.
However, the Court observed that:
the osteopathic treatment was generally focused on her spine;
the hip was rarely, if ever, the primary reason for treatment;
some complaints concerned the left hip, some the right hip and others both hips;
the complaints were frequently associated with her lower back, buttocks or sacroiliac joint;
she had not complained to her general practitioner about hip pain; and
she had not undergone medical investigations for hip pathology.
Ms Piedimonte described her pre-accident symptoms as low-grade, muscular pain across her lower back, buttocks and gluteal area. By contrast, the post-accident pain was localised to the right hip joint and extended into the groin and the front and side of her thigh.
The Court accepted that distinction.
What did the Court have to decide?
It was not disputed that Ms Piedimonte had a significant right hip condition and required a hip replacement.
The principal question was whether her condition was:
a new injury caused by the transport accident;
an accident-related aggravation of an existing injury that satisfied the serious injury test; or
the natural progression of an underlying disease unrelated to the accident.
The dispute therefore centred primarily on causation.
What is the TAC serious injury test?
Under section 93 of the Transport Accident Act 1986 (Vic), an injured person generally requires a serious injury certificate or leave of the Court before commencing a common law damages claim.
Ms Piedimonte was required to establish a serious, long-term impairment or loss of body function. When compared with other cases in the range of possible impairments, the consequences had to be properly described as at least “very considerable” and more than “significant” or “marked”.
Where a claimant has a pre-existing condition, only the consequences caused by the transport accident or an accident-related aggravation can be relied upon.
What did the medical evidence say?
The medical experts disagreed about when the labral tear and osteoarthritis developed.
The orthopaedic surgeon engaged by the TAC considered that the labral tear pre-dated the accident because the August 2016 MRI described it as “chronic”. He suspected that arthritis was already present and attributed its progression principally to degenerative disease and obesity.
However, he had not reviewed the MRI images himself. The original radiology report did not identify arthritis.
Ms Piedimonte’s treating orthopaedic surgeon considered that the forces generated by the accident could have damaged the hip and labrum. He regarded the accident as a substantial contributor to her condition and considered that the labral tear led to early osteoarthritis.
Why did the Court accept that the accident caused the hip condition?
The Court did not accept that the word “chronic” in the August 2016 MRI report established that the labral tear pre-dated the accident.
The MRI was performed approximately four months after the accident. Describing the tear as chronic established that it was not acute or recent when the scan was taken, but did not establish when it first occurred.
The Court also rejected the assumption that arthritis must have existed at the time of the 2016 MRI. In the absence of arthritis being identified in the radiology report, the Court was not prepared to assume that the reporting radiologist had overlooked it.
Although Ms Piedimonte’s treating surgeon had incorrectly understood that she had no pre-accident hip pain, the Court accepted her evidence that the earlier pain was different from her post-accident symptoms.
The Court considered it significant that:
her earlier symptoms were variable and involved the left, right or both hips;
her post-accident symptoms became localised to the right hip;
groin pain was first recorded after the accident;
she had never previously complained to her general practitioner about hip pain;
she had not undergone any pre-accident hip investigations; and
her post-accident pain was sufficiently severe and persistent to require an MRI and specialist treatment.
The Court preferred the evidence of Ms Piedimonte’s treating orthopaedic surgeon because it was more consistent with her accepted experience before and after the accident.
What did the Court find about the labral tear and arthritis?
The Court was satisfied that the labral tear was caused or significantly contributed to by the transport accident. It was not merely the natural progression of an underlying disease that would have occurred regardless of the accident.
The Court also found that:
arthritis was probably not present at the time of the August 2016 MRI;
the osteoarthritis most likely developed because of the labral tear; and
the combination of the labral tear and osteoarthritis created the need for a total hip replacement.
Did the injury satisfy the serious injury test?
The parties did not dispute that the right hip condition would satisfy the serious injury test if the accident was found to be a cause or significant contributing cause.
Once causation was established, the Court granted Ms Piedimonte leave to pursue pain and suffering damages.
Was Ms Piedimonte granted leave to claim pecuniary loss?
Ms Piedimonte had reduced her working hours after the accident and ceased working in April 2023.
Her work capacity was complicated by other health conditions, including intracranial hypertension, a cerebrospinal fluid leak, cognitive impairment and blurred vision. She had also taken maternity leave for reasons unrelated to her hip condition.
However, her general practitioner identified her hip arthritis and labral tear as conditions affecting her work capacity. The Court also accepted her evidence that hip pain restricted her ability to sit at a desk and climb stairs.
The Court emphasised that the application was only a gateway proceeding. The precise extent of Ms Piedimonte’s financial loss would be determined at trial.
The Court was satisfied that the transport accident had caused or would cause pecuniary loss and granted leave to pursue pecuniary loss damages.
What does this decision mean for TAC claimants?
The decision demonstrates that:
previous pain involving the same general area does not necessarily defeat a TAC claim;
the Court will closely compare the nature, location and severity of symptoms before and after an accident;
an accident may cause, aggravate or accelerate an underlying condition;
describing an injury as “chronic” does not necessarily establish that it pre-dated the accident;
assumptions made by medical experts must be supported by the underlying records and investigations;
contemporaneous medical and treatment records can assist the Court in distinguishing pre-existing symptoms from an accident-related injury;
the Court may accept parts of a medical opinion even where the expert received an incomplete history; and
a gateway finding of pecuniary loss does not determine the final amount recoverable at trial.
Speak with a Melbourne TAC lawyer
If a transport accident has caused or aggravated a pre-existing condition, you may still be entitled to compensation.
Bastion Legal assists injured people with TAC serious injury applications and common law claims throughout Melbourne and Victoria. Contact us to discuss your injuries and the compensation options that may be available.
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