Angel v State of New South Wales

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Angel v State of New South Wales [2021] NSWPIC 334
APPLICANT:	Anne Catherine Angel
RESPONDENT:	State of New South Wales
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	7 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Dispute as to whether left knee replacement surgery was reasonably necessary treatment as a result of workplace injury in 2020; prior history of symptomatic degenerative changes in the knee; Held - award for applicant; finding that the work injury had materially contributed to the need for the knee replacement surgery now and that the surgery was reasonably necessary treatment as a result of the work injury; Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd and Diab v NRMA Ltd applied.
DETERMINATIONS MADE:	1. The claim for weekly compensation is discontinued. 2. That the proposed left knee replacement surgery is reasonably necessary treatment as a result of the work-related injury on 30 June 2020. 3. The respondent is to pay the costs of the proposed left knee replacement surgery at the applicable workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Anne Catherine Angel, the applicant, was employed as an enrolled nurse by the respondent, State of New South Wales, at the Griffith Base Hospital, part of the Murrumbidgee Local Health District. On 30 June 2020 she sustained an injury to her left knee in the course of her employment. In these proceedings Ms Angel seeks compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) for proposed left knee replacement surgery. Her claim for weekly compensation was discontinued.
The respondent’s workers compensation insurer, Employers Mutual Limited, issued notices pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 30 September 2020, 28 April 2021 and 7 June 2021. These notices raise a number of issues. However, the respondent’s counsel confirmed the issues to be determined are confined to whether the left knee replacement surgery is reasonably necessary treatment and if so, whether the need for surgery arises as a result of the work-place injury. He confirmed that “injury” pursuant to section 4 of the 1987 Act is not in issue.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/ arbitration hearing before me on 11 August 2021. Ms Kavita Balendra, counsel, instructed by Mr Campbell Jeremy, solicitor, appeared for Ms Angel, who was present. Mr Bill Loukas, counsel, instructed by
Mr Danny Khoshaba, solicitor, and Mr Danny R from the insurer appeared for the respondent. The proceedings were conducted by telephone due to the COVID-19 situation.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply, and

(c) Application to Admit Late Documents (AALD) filed by the respondent dated 26 July 2021 attaching the records of Dr Redgment.

Oral evidence

There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

The main evidence relating to the left knee injury and the proposed total left knee replacement surgery is summarised below.

Ms Angel’s statement

Ms Angel, in her statement dated 18 May 2021[1], sets out her employment history and says before her injury she was working seven days per fortnight, with eight hour shifts as an enrolled nurse. She describes the physical nature of her duties and says about two to three years before the injury she commenced having pain in both of her knees, but she was still able to perform normal duties and do her housework and shopping. She took Panadol Osteo for pain. At that time, she rated her pain at 2 or 3/10.
[1] ARD p 1.
Ms Angel states on 30 June 2020 at work she came across a dementia patient who had a wheely walker on top of him and she bent down to remove it from him when she lost her balance and started to fall. Ms Angel says Nurse Deedee was next to her and grabbed her by her left arm to stop her from falling. Ms Angel says in the process she twisted and put a lot of pressure on her left knee. She says she noticed immediate sharp pain in her left knee. She completed her shift. She says by the time she got to her car she was in severe pain in the left knee, which worsened by the time she got home.
Ms Angel states she was rostered off the next day and attended work on 2 July 2020 and reported the incident to the Nurse Unit Manager and completed an Incident Report. The employer’s notification of injury form confirms the employer was notified of the injury on 30 June 2020[2]. This part of the form is signed by Tania Lucas, the WHS and IM Co-ordinator. An incident form headed “ims” has a report date of 13 July 2020[3].
[2] ARD p 110.
[3] ARD p 112.

She was rostered off the next three days, but Ms Angel says she experienced constant pain in her knee during that time.
Ms Angel recounts that she returned to work on 6 July 2020 but the pain in her knee was such that she was limping, and she could not put full weight on her left knee. On 7 July 2020 she attended Dr Win, general practitioner, who prescribed Endone for the pain and referred her for investigations. She said at this time she was using crutches and a knee brace. Thereafter, Ms Angel details her ensuing medical treatment for her left knee and her disabilities she experiences due to her left knee.

Left knee radiological tests

On 21 February 2012 x-rays of both knees revealed mild osteoarthritis of the patellofemoral joints. There was no effusion. There was severe narrowing of the medial joint space of the right knee and the left was reduced to a lesser extent[4].
[4] ARD p 125.
An MRI scan was performed on 14 March 2017 referring to twisting injury of the left knee. It was noted the images were suboptimal. The ACL could not be seen clearly nor could the patellofemoral joint. A macerated type tear involving the mid body was noted and degenerative cartilage loss of the medial compartment cartilage. There was tendinosis of the proximal popliteus and LCL[5].
[5] ARD p 25.
The MRI scan performed on 10 July 2020 at the request of Dr Win has a history of a twisting injury to the knee. It was concluded by the radiologist that there was a complete rupture of the ACL, tendinosis of the PCL, and a complex macerated type tear of the medical meniscus. Degenerative changes of the medial compartment were observed with osteoarthritic changes of the patellofemoral compartment. An unruptured Baker’s cyst was also present. In the body of the report there is reference to medial compartment joint space cartilage loss with bone-on-bone contact[6].
[6] ARD p 23.
An x-ray was also performed on 10 July 2020 showing severe osteoarthritic changes to the medial compartment and moderate changes of the patellofemoral joint[7].
[7] ARD pp 28-29.
On 4 June 2021, at Dr Redgment’s request, a CT scan of the left knee was performed for pre-operative purposes. It revealed tricompartmental osteoarthritis most severe in the medial compartment[8].
[8] AALD p 12.

General practitioners’ records

The clinical records from Your Health Griffith Pty Ltd for the period from 17 May 2007[9] to 27 October 2020[10] are in the ARD. Dr Win is the general practitioner who Ms Angel mostly consulted after the injury on 30 June 2020.
[9] ARD p 105.
[10] ARD p 46.
The first reference to knee pain in these records is on 14 February 2012 when Ms Angel’s knee was sore, it was noted that she did not have a fall[11]. The entry refers to “lt knee sore” however the next entry dated 16 February 2012 states “developed sudden onset R knee pain last night while standing and twisting body with leg stationary”. It was noted there was no locking or giving way and on examination her “gait was antalgic, ROM reduced due to pain in knee flexion and extension”. She was tender to palpation in the posterior and both medial and lateral aspects. The doctor’s impression was she had cartilage damage on the background of osteoarthritis. A referral was given for x-rays of both knees and for physiotherapy[12].
[11] ARD p 82.
[12] Physiotherapy referral ARD p 126.
On 9 March 2012 it is noted her knee was taped by the physiotherapist, although which knee is not recorded. It is noted that Ms Angel was keen to lose weight, which was recorded at 130.4kg[13]. On 4 March 2013 there is a reference to physiotherapy for knee cyst and arthritis. It is not recorded the knee to which this relates[14], although the entry ends with a reference to a referral for diagnostic imaging for “lt knee u/s guided cortisone inj[15]”. On 11 March 2013 a registered nurse at the practice noted a referral was given to Dr Khoo, orthopaedic surgeon and for physiotherapy[16]. The entry is brief and no detail of the body part to which it relates is given.
[13] ARD p 81.
[14] ARD p 78.
[15] ARD p 79.
[16] ARD p 78.
On 5 August 2016 an entry about lower back pain is recorded and it was noted Ms Angel was able to weight bear and walk and she did not have weakness in the legs. There is no reference to her knees being examined[17].
[17] ARD p 69.
On 17 March 2017 a registered nurse has recorded that Ms Angel was contacted about the results of an MRI left knee scan which was dated 14 March 2017. On 21 March 2017 Dr Win saw Ms Angel and recorded in the notes that she had injured her left knee on 5 March 2017 when putting on her shoe and it was a twisting injury. On examination the doctor found mild swelling of the left knee and he noted the knee looked much better. A referral was given to Dr Simon Matthews.
A discharge summary from Griffith Base Hospital records on 16 April 2017 that Ms Angel was to be discharged from the Emergency Department where she had attended with left knee pain, having experienced the same since 4am[18]. She was unable to weight bear. On examination there was nil swelling/inflammation.
[18] ARD p 121.
On 1 June 2017 Dr Win records that Ms Angel had ongoing knee pain and he explained
[19] ARD p 67.
[20] ARD p 65.
Dr Matthews’ letter, for conservative treatment at that stage[19]. Dr Win mentions Ms Angel’s left knee pain in his entry for 3 November 2017 and that she had a mild antalgic gait[20].
On 18 June 2018 Ms Angel attended on Dr Win complaining of bilateral knee pain and on examination the doctor found both knees had mild swelling and she looked in moderate pain. X-rays were ordered of both knees and a referral written to Dr Khoo[21]. On 30 June 2018
Dr Win writes that he explained the x-rays and he refers to severe osteoarthritis. On 30 July 2019 Dr Win refers to Ms Angel’s bilateral knee osteoarthritis, although the consultation seems mainly in relation to a low back condition[22]. On 5 August 2019 there is a referral written for ultrasound guided injections of both knees for bilateral osteoarthritis[23]. This seems to be the last consultation referring to the knees before the subject injury, despite
[21] ARD pp 60-61.
[22] ARD p 54.
[23] ARD p 54.
Ms Angel attending on Dr Win for other conditions.
On 7 July 2020 Dr Win records that Ms Angel injured her left knee on 30 June 2020 when she was about to fall attending a patient and that she had informed work of the incident. He noted she has had ongoing pain. On examination her gait was antalgic, and her left knee had mild swelling and she was unable to straighten her knee. An MRI scan of the left knee was requested for the twisting injury[24].
[24] ARD p 51.
On 20 July 2020 Dr Win referred Ms Angel to Dr Khoo in relation to treatment for her left knee, noting in the referral she had severe osteoarthritis with an ACL tear and medial meniscal maceration. In the past history Dr Win referred to the osteoarthritis in 2010 and a meniscal tear in the left knee in 2017[25].
[25] Referral at ARD p 26 and clinical entry is at ARD p 51.
On 28 July 2020 Dr Win noted Ms Angel was walking with crutches[26]. This was the same on 6 August 2020 and the doctor states she is not getting better[27]. On 3 September 2020 there is mention of a case conference and right knee pain. It is not clear if this was a typographical error for left knee pain[28]. On 1 October 2020 there is reference to another case conference and that EML had declined the claim and that there needed to be a referral to
[26]ARD p 50.
[27] ARD p p49-50.
[28] ARD p 49.
[29] ARD p 48.
Dr Redgment for a second opinion[29]. On 13 October 2020 Dr Win records that Ms Angel is due to see Dr Redgment on 24 November 2021 [sic, 2020]. He notes Ms Angel has been unable to go to work.
The physiotherapist, Aled Francis, emailed Dr Win on 14 August 2020 advising that after assessing the MRI scan and x-rays dated 10 July 2020 Ms Angel was a surgical candidate and physiotherapy at that stage was not appropriate[30].
[30] ARD p 108.

Dr Matthews

In a report from Dr Simon Matthews to Dr Win dated 2 May 2017[31], he diagnosed aggravated osteoarthritis in the left knee on a background of severe morbid obesity. This related to an incident when Ms Angel twisted her knee at home, and she attended the Emergency Department at Griffith Base Hospital as it was so painful, and she was unable to weight bear. Dr Matthews notes after five weeks her knee was pretty much back to normal. After reviewing the x-rays, the doctor stated he could not tell if there had been a posterior root tear, but he stated that it was irrelevant as the knee was too far gone for consideration of arthroscopic surgery. He postulates that she will need surgery for her knees at some point and encouraged Ms Angel to lose weight, as she was 130+kg. He concludes that as things have settled down, she has most likely just aggravated an arthritic joint and if this happened again in the future the treatment would be analgesia and a steroid injection.
[31] Reply p 36.

Dr Khoo

Dr Khoo reported to Dr Win on 10 August 2020[32]. He refers to the workplace injury on 30 June 2020 as involving twisting and the doctor records that Ms Angel says she has experienced severe pain in the left knee since, with a feeling of catching and locking and pain on walking. On examination he found moderate effusion and range of motion of 5 to 70 degrees. He states that examination of her ACL was limited due to pain and movement. He noted that the MRI scan revealed a complete rupture of the ACL with a tear of the medial meniscus and chondral loss of the medial compartment predominantly. The doctor recommended a total left knee replacement as this was the most reliable surgical procedure for her to deal with the injury and to enable a return to pre-injury duties as soon as possible. Dr Khoo provided a quote for the cost of the procedure[33].
[32] ARD p 44 and Reply p 45.
[33] ARD p 45.
In an earlier report dated 5 July 2018 Dr Khoo refers to Ms Angel having bilateral knee pain, left worse than right. He notes she has an antalgic gait and tenderness over her medial joint line bilaterally with range of motion of both knees of 0 to 100 degrees. Both knees had mild effusion and patello femoral crepitus. Dr Khoo referred to x-rays demonstrating bilateral osteoarthritis of the knee, worse in the medial compartments with patellofemoral disease. He states that he discussed the management, including maximising non-operative treatment, but when that fails, arthroplasty of the knee. He recommended injections bilaterally of steroid and local anaesthetic to both knees[34].
[34] ARD p 120 and Reply p 38.

Dr Redgment

On 1 October 2020 Dr Win referred Ms Angel to Dr Redgment[35]. In his report to Dr Win dated 27 November 2020 Dr Redgment refers to Ms Angel being very depressed and had tears in her eyes for most of his consultation. The doctor noted she was also carrying a lot of extra weight and still smoked. He said these factors lead him to the view that she is not in the right head space or in the right degree of physical conditioning to go ahead with knee replacement surgery, which he said she requires in both knees.
[35] AALD p 1.
The doctor recommended she give up smoking and start physical exercise in her home pool. Dr Redgment stated he would review her again in 2021 to consider surgery.
The doctor noted that the insurer had disputed the claim, and this was discouraging for
Ms Angel. He added:
“I do not think that it is really in Anne's interest to chase up the workers compensation
side of her left knee problem as clearly the meniscal tear has happened on a
background of a slow, long degenerative change. If I received a letter from the
insurance company, I would certainly state that she has had an injury which has
brought on and exacerbated some discomfort that she already had. If they then
decided to allow her surgery to be done under workers compensation cover, then we
could go ahead at some stage in the future[36].”
[36] AALD p 5.
On 30 March 2021 Dr Redgment examined Ms Angel again and reported to Dr Win that she had made progress with reducing her smoking to a fairly low level and she was mentally more able to look at what is ahead of her physically. He hoped for more progress and requested a review in June 2021. Dr Redgment stated he wanted clear evidence that she was really committed to improving her fitness and losing weight and he said if she could do this, then there is very likely to be a good outcome from the surgery[37].
[37] AALD p 7.
On 28 May 2021 Dr Redgment wrote to Dr Win, having reviewed Ms Angel the day prior. He stated that Ms Angel certainly needs a left knee replacement so she can remain mobile. However, he says she has not really come to grips with what she needs to do in terms of looking after herself. He noted she weighed 140kgs and smoked five cigarettes per day. He noted she intended to completely give up smoking by the time of the surgery. He noted she will only get a good result from the surgery if she contributes to the pre and post- operative care by doing more than she is currently doing. He nonetheless booked her in for surgery on 19 August 2021[38].
[38] AALD p 8.
At the arbitration hearing I was advised the surgery had been postponed to October 2021 due to the covid-19 situation.

Dr Machart

Dr Frank Machart, orthopaedic surgeon, provided medico-legal reports for Ms Angel dated 19 January 2021[39] and 25 March 2021[40]. He records a past history of Ms Angel’s knee complaints and that she had seen Dr Khoo about three years earlier for arthritis and had
[39] ARD p 134.
[40] ARD p 138.
x-rays and an MRI scan. Dr Machart takes a history of the work injury on 30 June 2020, which is consistent with Ms Angel’s statement. He notes she says she twisted her knee and experienced pain in the knee which increased over the next 24 hours and she found it difficult to weight bear. He notes that Dr Khoo and Dr Redgment have recommended knee replacement surgery, which Ms Angel was keen to undertake.
Dr Machart provides a diagnosis that the impact of the injury on 30 June 2020 “was additional internal knee derangement, medial meniscal tear and ACL rupture, reasonably assigned to the incident on 30/06/2020. These pathological changes were not present on previous MRI. The degenerative change is a pre-existing condition”. He adds that the proposed surgery will address all the pathological issues being ACL rupture, medial meniscal tear and osteoarthritis. Dr Machart states that “the injury was a structural intra-articular injury which also aggravated the pre-existing osteoarthritis and made the existing symptoms worse[41]”.
[41] ARD p 136.

Dr Machart also expressed the view that the proposed left knee replacement surgery was
“reasonably necessary and causally related to the work-related injury. I do not have reasons to conclude that knee replacement be necessary now in absence of this injury, probably would have been necessary at some stage, but not at this point in time.”

Dr Wallace

Dr Wallace from Active Recovery Clinics reported to Dr Win on 2 September 2020 regarding a consultation he had with Ms Angel via Telehealth. He has a history of the left knee twisting injury at work on 30 June 2020. He also notes she noted onset of pain at her knee, and she was able to complete her shift that day and had a rostered day off and on her return to work, she reported the incident. Dr Wallace records that Ms Angel saw Dr Win on 7 July 2020, and he provided her with a left knee brace, prescribed Endone and mobilisation on crutches. He has the history that she was put off work for one day and returned to work for two days but noticed increasing pain in her left knee. The doctor says she then continued with crutches and analgesic medication.
Dr Wallace records Ms Angel’s past history of left knee pain over the prior two years for which she was treated with analgesics and required no time off work. He notes at that time Dr Khoo suggested she would require a left total knee replacement in the future. He noted her present and current complaints, the radiological investigations and his clinical examination findings. Dr Wallace diagnosed that Ms Angel had a work injury consisting of aggravation of pe-existing symptomatic degenerative osteoarthritis in the left knee.
[42] Reply p 55.
Dr Wallace advised that it was likely that Ms Angel’s current left knee symptoms would settle with an ongoing exercise-based rehabilitation program and it would be premature for her to undergo a left knee replacement at that time[42]. Dr Wallace reported again on 14 October 2020.

Dr Doig

Dr Doig examined Ms Angel for the insurer and issued a report dated 29 September 2020. He says he is a general orthopaedics and trauma specialist. Dr Doig found that Ms Angel suffers from primary, idiopathic osteoarthritis of the left knee joint on the background of morbid obesity. He states “the minor incident of 30 June 2020 did not appear to cause any immediate problems with the knee. She only developed increasing pain that evening while at home”.
The doctor was asked if “Ms Angel’s injuries and/or symptoms are entirely related to the incident on 30 June 2020? If no, how much of their current presentation do you attribute to a pre-existing condition, previous injury and subsequent events”. Dr Doig responded:
“Ms Angel’s current pain and restrictions are greater than 90% as a result of the pre-existing condition of osteoarthritis of the left knee. As far as I am aware, there was no past, significant injury to the knee joint. She is significantly overweight which is
increasing the bio-mechanical stress through her joint.”

He later opined that there is no evidence to support that her left knee was aggravated by the minor incident of 30 June 2020. He bases this on his understanding that there was a delay in the onset of Ms Angel’s symptoms. This is contrary to Ms Angel’s statement wherein she states she noticed immediate sharp pain in her left knee and completed her shift. She says by the time she got to her car she was in severe pain in the left knee, which worsened by the time she got home.
Dr Doig refers to Ms Angel’s subsequent work history and states she continued to work for two weeks and then she took time off. Again, this does not accord with Ms Angel’s evidence. She states she was rostered off the next day and attended work on 2 July 2020 and reported the incident to the Nurse Unit Manager and completed an Incident Report. She was rostered off the next three days, but says she experienced constant pain in her knee. Ms Angel recounts that she returned to work on 6 July 2020 but the pain in her knee was such that she was limping, and she could not put full weight on her left knee. She saw Dr Win the next day.
In relation to the proposed surgery, Dr Doig states due to Ms Angel’s body habitus he would be reluctant to perform a total knee replacement at that time due to the risks involved. He says there is a 15 to 20% risk of a poor outcome in the general population, which has not changed over the last 50 years. He finds the knee replacement surgery is not causally related to the incident on 30 June 2020, which he classes as minor. He notes alternate treatment would involve significant weight reduction, analgesics and anti-inflammatory medication. However, he states
“A decision to perform knee replacement surgery is made between the surgeon and patient after a thorough description of the risks, benefits and rehabilitation have been provided (informed consent). The primary symptom for performing total knee replacement is pain which is very subjective in nature and varies between individuals.”
Dr Doig concludes by stating that Ms Angel’s obesity is rendering her left knee joint more symptomatic than the minor incident on 30 June 2020, where there was delayed symptoms presentation.
In a supplementary report dated 13 May 2021 Dr Doig was asked to clarify his diagnosis as to what he meant by his reference to a minor incident. He advised:
“It would appear that Ms Angel suffered a temporary symptomatic exacerbation of the
pre-existing, primary, idiopathic osteoarthritis of the left-knee joint as a result of the
described incident at work.”

Relevant legal principles

The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[43] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[43] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd[44], whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
[44] [2015] NSWWCCPD 49, Murphy.
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by section 60 of the 1987 Act was considered in the case of Diab v NRMA Ltd[45], which in turn deals with Judge Burke’s decision in Rose v Health Commission (NSW)[46]. In Diab Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
[45] [2014] NSWWCCPD 72.
[46] (1986) 2 NSWCCR 32.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose with approval and stated:

“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:

(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’”.

In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[47] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[47] [2008] NSWCA 246, Nguyen.

Submissions

The submissions of both counsel have been sound recorded and so are not repeated verbatim by me. The key points made by each of them are summarised below.
Ms Angel’s counsel made the following submissions:
(a)    Ms Angel has given evidence in her statement about feeling pain in her left knee immediately after the incident on 30 June 2020, which became severe by the time she got home;
(b)    Ms Angel accepts that she has experienced longstanding osteoarthritis in her left knee, and it was symptomatic from time to time, such as demonstrated in the pre-injury MRI scan and general practitioner’s records;
(c)    however, the 2017 MRI does not refer to a complete rupture of the ACL or a macerated tear of the medial meniscus and these are evident on the post-injury scans, suggesting the injury on 30 June 2020 was of some significance;
(d)    also, there is very little record of the left knee being symptomatic after about June 2018 until 7 July 2020. Emphasis was placed on this latter entry as it referred to the knee being jarred, and there was swelling and an inability to straighten the knee;
(e)    Dr Khoo, orthopaedic surgeon, had seen Ms Angel pre and post-injury and in his report dated 10 August 2020 he said that at the time of the injury on 30 June 2020 she was working her full duties with no knee complaints;
(f)    it is relevant that in the earlier report of Dr Khoo dated 5 July 2018 he did not recommend surgical treatment for the left knee and was focusing on non-operative treatment, but he did recommend a total knee replacement in his post-injury report;
(g)    it was submitted that the above evidence leads one to the conclusion that the injury on 30 June 2020 was significant and materially contributed to the need for a left total knee replacement;
(h)    counsel relies also on the opinion of Dr Machart and his diagnosis that the impact of the injury was additional internal knee derangement, medial meniscal tear and ACL rupture and that these pathological changes were not present prior on the prior MRI. Dr Machart found the proposed total knee replacement was brought forward by the injury and that there is no evidence that Ms Angel would have needed it now had the injury not occurred, even though at some time in the future it would have been necessary;
(i)    it was noted that Dr Matthews in 2017 found an aggravation of the left knee which settled down with very little intervention;
(j)    in relation to Dr Redgment’s report dated 27 November 2020, counsel submits that despite that he felt Ms Angel should not pursue a workers compensation claim, he supports that there was an injury that has brought on the need for the proposed left total knee surgery, and
(k)    counsel was critical of Dr Doig’s opinion and submitted he does not actually deny there was an injury to the left knee on 30 June 2020. It was submitted that the weight of the evidence should be preferred to that of Dr Doig’s opinion, and the Commission should find that the work injury brought forward the need for the proposed surgery and as such, has materially contributed to the same.
The respondent submitted:
(a)    Ms Angel waited a week to see a doctor about her knee against a longstanding background of problems with her knees for a decade. It was submitted that she did not go to the doctor until a week after the incident as the first consultation was on 7 July 2020. It was noted that incident report was completed on 14 July 2020. Counsel submitted that this suggests that she did not believe her problems with her left knee were work related because otherwise she would have completed an incident report sooner. It was also submitted that Ms Angel was not entirely frank about her past problems with her knee in her statement as she had experienced knee problems over a longer period of time than she mentions in her statement;
(b)    it was submitted that Dr Machart makes no reference to the knee issues in 2017 nor does he refer to the fact that there were longstanding problems in the left knee. It is argued that the doctor does not have a complete history of Ms Angel’s prior problems, and therefore, his opinion should not be relied upon as he does not have a fair climate relating to Ms Angel’s medical history upon which to base his opinion;
(c)    counsel referred to the entry in the general practitioner’s notes for 21 March 2017 when Ms Angel experienced left knee pain when putting her shoe on. It was argued that this was an example of an inevitable exacerbation when undertaking innocuous events. This was likened to the work event on 30 June 2020;
(d)    it was submitted that there is no compelling evidence of a tear caused by a frank incident on 30 June 2020 as opposed to multiple fraying from the underlying osteoarthritis. It was noted that x-rays were ordered in 2012 and 2017 and the radiology in 2017 revealed a meniscal tear;
(e)    reliance was placed on Dr Doig’s opinion that the left knee condition is constitutional on a background of morbid obesity and the proposed surgery is not related to the work injury;
(f)    counsel also noted that Dr Matthews in 2017 felt the left knee was too far gone for any arthroscopy surgery. Dr Matthews suspected she would need surgery in the future because of her advanced osteoarthritis but that she is not a candidate for surgery due to her weight;
(g)    it was submitted that Ms Angel has not made out a case that the surgery has been materially caused by the work injury. Dr Doig was of the opinion that the work incident was trivial or innocuous;
(h)    counsel submitted the work incident was a temporary aggravation and she would have needed it in any event;
(i)    at one point counsel submitted that no doctor is stating that surgery is not necessary, the question is whether it is related to work. Counsel further submitted if it is, cases such as Diab are relevant because there is reluctance to perform the surgery because Ms Angel needs to lose weight and she is not psychologically ready to undertake surgery. Reliance was also placed on Dr Wallace who refers to Ms Angel needing to give up smoking and Dr Redgment’s concerns about performing surgery. It was argued the effectiveness of the proposed surgery is in issue. It was also noted that Dr Redgment does not provide a strong opinion on causation, and
(j)    finally, it was also argued that even if the Commission finds the surgery is reasonably necessary, it is not reasonably necessary now because Ms Angel is not ready for surgery to be undertaken now because of the above factors, such as losing weight.
Ms Angel’s counsel submitted in reply that it is a matter for Ms Angel and her treating doctors as to the optimal time for the surgery to be performed and the Commission should find the proposed surgery is reasonably necessary and not second guess as to when it should be undertaken.
In relation to the respondent’s criticism of Dr Machart’s history, it was submitted that the doctor does compare the current MRI to the prior findings of the earlier MRI and so it is clear he is aware of Ms Angel’s prior left knee condition. It was argued that the respondent’s submission that the event on 30 June 2020 was innocuous, and Dr Doig’s opinion in that regard, should be rejected. It was submitted that this view of the event does not accord with the evidence because after the event on 30 June 2020 Ms Angel had difficulty in working and in such a context it should not be dismissed as innocuous.

Determination

I have difficulty accepting the opinion of Dr Doig because it is based on his view that the incident on 30 June 2020 was minor and did not appear to cause Ms Angel any immediate problems with the knee. This does not accord with the evidence from Ms Angel. She says she twisted her left knee in the incident and noticed an immediate sharp pain in her knee. She adds that by the time she got to her car, at the end of her shift, she was in severe pain, which worsened by the time she got home.

Dr Doig further proceeds to opine that there is no evidence to support that Ms Angel’s left knee was aggravated in the incident on 30 June 2020. However, in addition to Ms Angel’s evidence about her immediate symptoms it is significant, in my view, that Dr Win in his post-injury examination on 7 July 2020 recorded that Ms Angel’s gait was antalgic and her left knee had mild swelling and she was unable to straighten her knee. The presence of such symptoms within a short time of the injury leads me to find that it was not a trivial incident.
I consider the evidence establishes that Ms Angel did suffer a twisting of her left knee on
30 June 2020 which has caused such symptoms to develop. There is certainly no evidence that in the year leading to the incident that Ms Angel had an antalgic gait or had difficulty straightening her knee. Therefore, I find that I cannot place weight on Dr Doig’s opinion as he has proceeded so heavily on the basis that the incident was trivial.
The respondent was somewhat critical of Ms Angel in its submissions at one point asserting her delay in completing an incident report suggested she did not feel her left knee condition was related to the work incident. I reject that submission. It does not take into account
Ms Angel’s unchallenged evidence. Ms Angel says in her statement at [15] she did not complete an incident report on 30 June 2020 as her shift was scheduled to finish at 10pm but she had to complete patient notes which took until 10.30pm or 10.45pm. She says she did not complete the incident report because it was late, and she was in a lot of pain and the reporting process takes about 40 minutes. Ms Angel also states that the day after the incident she was rostered off and on Thursday 2 July 2020 she attended for work and reported the incident to the Nurse Unit Manger Jane and an incident report was filled in. Then she was rostered off for the next three days and on Monday, 6 July 2020, she attended work, but she was limping due to the pain in her left knee, and she could not fully weight bear. She attended Dr Win the following day on 7 July 2020. I find that this is an acceptable explanation by Ms Angel of why she did not immediately fill out an incident report. I also find that these facts do not support the inference the respondent sought to make, that Ms Angel did not believe her knee pain was related to the work place incident.
The respondent’s submissions also criticised Ms Angel’s recount of her pre-injury knee problems because she states at [10] that about two to three years ago she commenced having pain in both knees. The respondent draws attention to the evidence that Ms Angel had x-rays of both knees in 2012. While Ms Angel does not refer to this time, I do not have concerns about her credibility. She has acknowledged she did have problems in her knees before the subject injury but the point she makes is even though she had pain she rated at
2-3/10, she was able to perform her normal duties. The respondent has not put on any evidence from those with whom she worked to challenge this assertion.
Furthermore, the pre-injury records do not reveal knee complaints from about March 2013 until March 2017 and then the last knee complaint before the subject injury seems to have been on 5 August 2019. Taking into account this evidence, I am not persuaded that Ms Angel’s credit has been affected by failing to specifically refer back to knee issues in 2012. Ms Angel’s counsel confirmed that she acknowledged that Ms Angel had longstanding osteoarthritic changes in her left knee.
The central issue in the case is one of causation, whether the injury on 30 June 2020 has caused the need for the left total knee replacement. In the case of Murphy, it was found that a condition can have multiple causes and the work injury does not have to be the only or substantial cause to establish that treatment is reasonably necessary. Roche DP stated that a worker only has to establish whether the work injury materially contributed to the need for surgery.
I find that the opinions of Dr Machart, Dr Khoo and Dr Redgment are supportive of the finding that the injury to Ms Angel’s left knee on 30 June 2020 did materially contribute to the need for her to undergo left knee replacement surgery when read together. I am not persuaded by the respondent’s submissions about each of those doctors’ opinions for the following reasons.
The overarching submission of the respondent is that the work incident on 30 June 2020 was trivial and Ms Angel would in any event have needed a left knee replacement as the pathology in her knee revealed a bone-on-bone situation. Dr Machart expresses the opinion that there is no evidence that Ms Angel would have needed a left knee replacement now, even though she may have needed it sometime in the future. It is evident that Dr Machart feels the added impost to the left knee by the injury on 30 June 2020 has brought forward the need for surgery. This opinion provides support for the conclusion that the work injury has materially contributed to the need for surgery. The respondent was critical of Dr Machart’s opinion because it submitted that the doctor did not have a sufficient understanding of
Ms Angel’s prior knee condition, and so he did not have a fair climate upon which to base such an opinion. The reference to a “fair climate” is to the passage in the Court of Appeal decision in Paric v John Holland (Constructions) Pty Ltd[48] citing Wigmore On Evidence. This decision was upheld by the High Court[49] and explained further in the often-quoted passage from Makita (Australia) Pty Ltd v Sprowles[50] where Heydon JA stated at [64]:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.”
[48] [1984] 2 NSWLR 505 at 509-510, Paric
[49] Paric v John Holland (Constructions) Pty Ltd [1985] 58; 59 ALJR 844
[50] [2001] NSWCA 305, Makita.
Dr Machart does have a history that Ms Angel developed arthritic symptoms over many years in her left knee, but she managed reasonably well. He notes “She saw Dr Khoo about 3 years ago for arthritis and had x-rays and MRI”. This is a reference to the treatment in 2017. Dr Machart also has a history that in the incident on 30 June 2020 Ms Angel suffered a twisting injury to her left knee and experienced pain in her knee which increased over the next 24 hours and she found it difficult to weight bear. I find these facts are sufficiently alike to those which I have accepted above based upon Ms Angel’s statement and Dr Win’s examination on 7 July 2020.
Dr Machart considers that the degenerative change in the left knee was pre-existing but there was additional internal derangement in the injury, which aggravated the pre-existing osteoarthritis and made her symptoms worse. Certainly, his opinion is expressed economically, and it would have been helpful had he overtly referred to the pre and post injury radiology. However, I find that when one reads all of the reports from Dr Khoo,
Dr Matthews and Dr Redgment their opinions are consistent with the conclusion reached by Dr Machart and not with that reached by Dr Doig.
Dr Khoo has had the advantage of treating Ms Angel before and after the work injury on 30 June 2020. He saw her fairly soon after the injury, within six weeks on 10 August 2020. At that time, he recorded a history of Ms Angel experiencing severe pain since the work injury. On examination he found moderate effusion and examination of the ACL was difficult due to pain and range of motion was 5 to 70 degrees whereas in 2018 it was 0 to 100 degrees. The effusion in 2018 was also less, as he describes it as mild. Furthermore, while the radiologist in 2017 stated that the MRI did not show the ACL clearly in 2020 the radiologist found a complete rupture of the ACL. As noted, Dr Khoo found in 2020 examination of the ACL was limited due to pain. He did not make such a finding in 2018.
I find it significant that in 2018 Dr Khoo was focused on non-operative treatment, yet in 2020 he recommended the left knee replacement surgery, as he said it was the most reliable surgical procedure to deal with her injury and to enable a return to work as soon as possible. It is clear that Dr Khoo relates the need for surgery to the added impost to the knee imposed by the injury on 30 June 2020, even though it is on the background of osteoarthritic changes.
This view is also that reached by Dr Redgment, who states that the injury has brought on and exacerbated some discomfort that Ms Angel had in the left knee.
Dr Matthews did envisage in 2017 that Ms Angel would eventually need surgery at some point in time, but at that time her knee had settled down and he said if it flared up the treatment was analgesia and steroid injection. Consistent with this, Dr Win had written a referral on 5 August 2019 for ultrasound guided steroid injections to her knees. Even though Ms Angel visited Dr Win for other medical conditions after this time up to the work injury, there is no further reference to her left knee.
If one examines Dr Win’s records carefully, as I have summarised above, it is evident that after the injury on 30 June 2020 the situation with her left knee did change. Not only did she have difficulty straightening her knee, she had to use crutches. There are no such references before the work injury to this type of presentation.
Therefore, the conclusion reached by Dr Machart that there is no evidence that Ms Angel would have needed a left knee replacement now, even though she may have needed it at some stage, is borne out by the treating medical evidence.
Dr Wallace also has a history that after the work injury on 30 June 2020 Ms Angel had pain, was given a knee brace, Endone and mobilised on crutches. He noted prior to this injury while she had knee pain, she needed no time off work. He found there was aggravation of the pre-existing symptomatic degenerative osteoarthritis caused by the work injury. However, he thought it would settle. I find that this prediction did not come to pass as the treating evidence is consistent with the effects of the injury not settling. In Kooragang there is reference to an event setting in train a series of events. I find this has occurred in Ms Angel’s case. She undoubtedly had an osteoarthritic left knee before the workplace injury on 30 June 2020. It may well have eventually given rise to the need for surgery. However, that point had not been reached at the time of the injury. She was able to work and manage her activities notwithstanding her knee pathology and weight. I find the added injury to her left knee increased her symptoms in the left knee, exacerbating the underlying pathology to the point where she now requires a left knee replacement.
In Kooragang there is also a reference to in some cases a point being reached where the link in the chain of causation becomes so attenuated resulting in a break in the chain of causation. I find there is no evidence of this occurring. The examination of the treating records reveals Ms Angel became more symptomatic after the work injury and that her left knee did not settle back to the pre-injury state.
For all of the above reasons, I find that Dr Doig’s opinion about causation is not consistent with the weight of the medical evidence. I am satisfied that Ms Angel has discharged her onus of proof and established that the twisting injury to her left knee on 30 June 2020 has materially contributed to her now requiring a left total knee replacement.
The other issue relates to whether such surgery is reasonably necessary taking into account the principles set out above from Diab. The respondent has argued that a finding should not be made in Ms Angel’s favour because both Dr Khoo and Dr Redgment have expressed the view that she needs to lose weight and give up smoking. Dr Redgment also feels that she needs to be in a better place psychologically and commit to improving her fitness for the surgery to have a good outcome.
I accept Ms Angel’s counsel’s submissions that it is a matter for the treating orthopaedic surgeon as to the optimal timing for the surgery and note Dr Redgment’s records reveal he had booked it in for 19 August 2021 and the preliminary booking forms were completed, which indicates his preparedness to undertake the surgery. Unfortunately, due to covid-19 there has been a delay.
I find the factors discussed in Diab are met in this case. I find there is no viable alternate treatment. The physiotherapist declined to treat Ms Angel’s left knee as he believed surgery was the only viable treatment. The cost is of the knee replacement surgery is not excessive, and the weight of medical evidence supports this type of surgery is the appropriate type of treatment. Dr Redgment has not rushed into the surgery, showing careful consideration of Ms Angel’s presentation to try to achieve the best outcome. Dr Doig’s states that there is a 15 to 20% risk of a poor outcome in the general population for such surgery. I find this is not determinative, as noted by Roche DP in Diab at [89] a poor outcome does not necessarily mean that the treatment is not reasonably necessary. Dr Doig later acknowledges the role of the treating surgeon in the decision to operate and that “[t]he primary symptom for performing total knee replacement is pain which is very subjective in nature and varies between individuals.” I am satisfied that Ms Angel’s presentation with limitations of movement and pain in the left knee are such that knee replacement is reasonably necessary treatment in accordance with the principles discussed in Diab.
In summary, I find that the proposed left knee replacement surgery is reasonably necessary treatment as a result of the work injury on 30 June 2020. I order that the respondent is to pay the costs of the same in accordance with the workers compensation gazetted rates.

[2021] NSWPIC 334

7 September 2021