Arkwright v Arkwright Enterprise Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Arkwright v Arkwright Enterprise Pty Ltd [2022] NSWPIC 511
APPLICANT:	Shane Arkwright
RESPONDENT:	Arkwright Enterprises Pty Ltd
Member:	Jill Toohey
DATE OF DECISION:	15 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of right total knee replacement; accepted injury to lumbar spine; no dispute that the worker has severe osteoarthritis in the right knee; no dispute that the proposed treatment is reasonable treatment for the condition in his right knee; whether the worker developed a consequential condition in his right knee as a result of the lower back injury; worker had anterior cruciate ligament reconstruction 22 years earlier; whether the accepted injury materially contributed to the need for the proposed treatment; Held – the worker performed increased kneeling and squatting because he could not bend following his injury; worker developed antalgic gait due to severe lower back and left leg pain; finding that the accepted injury made a material contribution to the need for treatment; award for the applicant.
determinations made:	1. The applicant sustained injury to his lower back arising out of or in the course of his employment with the respondent on 15 May 2017. 2. The applicant developed a consequential condition in his right knee as a result of the injury on 15 May 2017. 3. The right total knee replacement proposed by Dr Nick Hartnell is reasonably necessary treatment as a result of the applicant’s injury. 4. The respondent to pay the reasonably necessary costs of, and associated with, the right total knee replacement proposed by Dr Hartnell.

STATEMENT OF REASONS

BACKGROUND

Shane Arkwright, the applicant, owned and operated Arkwright Enterprises Pty Ltd, a company whose business was completing the resurfacing of sports courts. On 15 May 2017, he was lifting a high-pressure washer machine from a trailer with the help of a friend when he experienced intense pain in his lower back and down his left leg. Scans showed he had a disc protrusion in his lower back.
GIO, the workers compensation insurer, accepted liability for injury to Mr Arkwright’s lower back.
Mr Arkwright’s general practitioner, Dr Fiona Khoo, referred him to neurosurgeon, Dr Michael Donnellan, who recommended surgery. On 21 August 2017, Dr Donnellan performed an L4/5 discectomy and insertion of a barricaid device. After post-surgery rehabilitation, Mr Arkwright returned to light duties in a supervisory role.
Despite initial good results, Mr Arkwright’s lower back pain returned and, on
21 September 2018, he underwent an L4/5 anterior fusion and L3/4 disc replacement. His pain increased and, on 11 October 2019, he underwent an L4/5 lumbar decompression. There was a little improvement in his symptoms. On 20 August 2020, he underwent L4/5 and L5/1 lumbar decompressions, but his lower back and left leg pain continued.
Mr Arkwright claims that, as a result of his lower back injury, he developed a consequential condition in his right knee by way of aggravation of pre-existing osteoarthritis. He claims the cost of a total right knee replacement recommended by orthopaedic surgeon, Dr Nick Hartnell.
By dispute notices issued on 9 October 2019, 20 January 2020 and 14 December 2021, the respondent denies liability for the cost of the proposed treatment. The respondent maintains that the need for the proposed treatment arises from a sports injury approximately 22 years ago which required an anterior cruciate ligament repair.
There is no dispute that the procedure proposed by Dr Hartnell is reasonable treatment for Mr Arkwright’s right knee condition but the respondent disputes that it results from the injury to his lower back.

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the treatment proposed by Dr Hartnell is reasonably necessary as a result of the accepted injury to Mr Arkwright’s lumbar spine.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration hearing on 24 August 2022. Mr Arkwright was represented by Ms Nicole Compton of counsel, instructed by Ms Soraya Potter. The respondent was represented by Mr Philip Perry of counsel, instructed by Ms Laura Risti.
The parties were unable to resolve their dispute and the matter proceeded to an arbitration hearing.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attachments,
(b)    Reply and attachments,
(c)    the respondent’s Application to Admit Late Documents lodged on 17 August 2022 and attachments, and
(d)    the applicant’s Application to Admit Late Documents lodged on 24 August 2022 and attachments.

Oral evidence

Neither party sought leave to adduce oral evidence or cross-examine any witness.

Mr Arkwright’s evidence

Mr Arkwright’s evidence is set out in a statement dated 20 May 2022.[1] He states that he started his own company in about 2016. Its business was completing sports court resurfacing. His duties included “everything from surface preparation, painting, line marking, to job allocation, demonstration and supervision as well as cleaning” and using machinery including generators, drills, mixes, blowers, grinders and jackhammers. The machinery and paint had to be packed up and moved daily as it was too expensive to leave on site.
[1] ARD page 2.

Mr Arkwright states that he normally worked six days a week, starting around 4.00am to 4.30am to travel to the work site. He worked from around 5.00 am or 6.00 am, depending on daylight savings, to get the area ready by marking up, taping areas and laying plastic. Most of the time he would have two to four men working with him on site.
Mr Arkwright states that, when he was in his 20s, he injured his right knee playing football. He required surgery in the form of an ACL construction. He recovered fully and had no ongoing problems. He had no injuries to his lower back before the injury on 15 May 2017.
On 15 May 2017, Mr Arkwright was unloading a high-pressure washer from a trailer with the help of a friend. As he went to place it on the ground, he experienced “a sharp intense pain in my lower back which then sent a shooting pain down my left leg”. He rested briefly then went inside and told his wife. There was nothing officially recorded or documented at the time. He lodged a workers compensation claim and the insurer accepted liability.
With respect to treatment for his injury, Mr Arkwright said that, initially, he did not think he had done anything serious. He woke the next day in a lot of pain and had numbness in his left leg. He took some time off work to rest, thinking it would “come good”.
By the end of May 2017, the pain and numbness has not eased and Mr Arkwright saw his general practitioner, Dr Fiona Khoo. An X-ray and an MRI showed a disc protrusion involving the nerves. Dr Khoo referred him to neurosurgeon, Dr Michael Donnellan, who recommended surgery.
On 21 August 2017, Dr Donnellan performed an L4/5 discectomy and insertion of a barricaid device. Mr Arkwright says he had a good result initially. He undertook physiotherapy and hydrotherapy and was “eventually able to return to light duties in a supervisory role”.
When his back pain returned and worsened, Mr Arkwright saw Dr Donnellan again. On
21 September 2018, he underwent an L4/5 anterior fusion and L3/4 disc replacement. He had post-surgery physiotherapy but noticed no improvement in his symptoms.
By 2019, the pain had gradually increased and, on 11 October 2019, Mr Arkwright underwent an L4/5 lumbar decompression. When there was still little improvement, he was referred to another neurosurgeon, Dr Omprakash Damodaran, who recommended “a redo L4/5 and L5/1 lumber decompression”. Mr Arkwright underwent that procedure on 20 August 2020.
Mr Arkwright says he experienced no improvement in his back or left leg pain. All of his toes were numb and he noticed increasing pain in his left leg and a “stabbing pain” in his back. Around February 2020, he started seeing pain physician, Dr Laurent Wallace, who raised the possibility of a spinal-cord stimulator but Mr Arkwright did not want to have that procedure as he was “not willing to put myself at any further risk” from more procedures.
On 1 December 2020, Mr Arkwright was prescribed and started using medicinal cannabis oil under the care of his then general practitioner, Dr Alexander Golowenko. Prior to commencing cannabis oil, he was taking Targan, Mirtanza, Lyrica, Entrip, Tramadol and Panadol daily, and Valium as required. He experienced a number of side-effects of the medications and gradually decreased them once he started cannabis oil. When the insurer declined to pay for the cannabis oil, he paid for it himself but struggled to afford it and decided to stop taking it. He returned to using his former medications plus Mirtazapine.
Mr Arkwright says that, as a result of his injury, he lost strength in his left leg. He favoured his right leg and changed the way he walked. About two years after the injury, his right knee became painful and, after his second back operation, it started to give way, “often” causing him to fall over. Dr Khoo referred him to Dr Hartnell who recommends a right total knee replacement. Mr Arkwright states that he is hopeful that the surgery will improve his symptoms and he wants to undergo the treatment.

Clinical records

Attempts to obtain clinical records relating to Mr Arkwright’s ACL surgery approximately 20 years ago were unsuccessful. At the telephone conference, Mr Arkwright said he believed the procedure was carried out at the Mater Hospital, or possibly the Queen Elizabeth II Hospital, in Brisbane where he was living at the time. However, in response to Directions to Produce, both hospitals advised they either had no records or any records had been destroyed. Similar responses were received from two other hospitals.
Mr Arkwright said at the telephone conference that he could not recall the name of his general practitioner when he had the ACL repair. He moved to New South Wales when he was about 23 and he did not have a regular general practitioner until around 2013 when he moved to Bowral. He has attended on Eastbrooke Medical Centre in Bowral since.
Records from Eastbrooke Medical Centre are in evidence.[2] They date from 11 February 2016 and show that Mr Arkwright saw doctors at the practice approximately monthly with various complaints until 18 August 2016. There is no reference to his back or right knee.
[2] ARD page 29; Respondent’s late documents page 15.
The next entry is on 29 May 2017 when Mr Arkwright saw Dr Khoo who recorded:
“LBP+++ started over 2 weeks ago, worse last week, with pain down L buttock to knee
unable to bend, nurofen not helping
doing lots of bending, lifting at work
back pai [sic] usually settled with heat, masage, but not this time”
Dr Khoo recorded pain and restriction on movements and “disc protrusion with nerve compression” and she would review him after an MRI.
On 2 June 2017, Dr Khoo recorded:
“low back pain not responding to endone
sciatica pain easing slight with lyrica 75 mg bd
discuss re-degenerative disc bulge, affecting nerve root L5
…
Unable to work as work involves lots of bending lifting”
Mr Arkwright continued to see Dr Khoo about his low back pain. She noted his continuing pain after surgery performed by Dr Donnellan and his poor response to other treatments including cortisone injections, medication and hydrotherapy.
On 12 January 2018, Dr Khoo recorded swelling in the left knee and that Mr Arkwright “has been doing kneeling, bending the knees to avoid [low back pain]”.
On 4 September 2019, Dr Khoo noted:
“noted R knee tends to give way and causing falls over last 12 months. more frequent falls recently
had a fall 5 days ago while walking, R knee gives way, pain++, need to take extra endone for pain relief
had aCL reconstruction r knee age 21.
need MRI r knee
referral to Dr Hartnell”
Dr Khoo referred Mr Arkwright to Dr Hartnell “for opinion and management of recurrent falls/pain in right knee which ‘gives way’ causing the falls”. She noted the ACL reconstruction at age 21.
On 11 September 2019, Dr Khoo recorded “pain++ in R knee, advance OA, needs to up his endone … long discussion re knee/back pain management”.
Notes on 18 September 2019 refer again to back pain and leg pain and “pt a bit frustrated due to recent falls due to both knee pain?”.
Notes throughout 2020 refer to ongoing, worsening, back pain and referrals to a pain specialist and to Dr Damodaran. On 5 August 2020, Dr Khoo recorded that Mr Arkwright’s legs “went under him” the previous week; he landed on his knees and could not get up. He had “pain+++” since and needed walking sticks to walk. Notes throughout 2021 record ongoing complaints of lower back and persisting left leg pain, and the trial of medicinal cannabis oil.
On 30 May 2022, Dr Alexander Golowenko noted “using walking stick when pout [sic] of house for stability to reduce LBP”. On 16 June 2022, he noted:
“fall x 2 t nioght[sic]
feels R leg weaker
o/e:
R leg reduced knee flex + ankle dorsi flex”
On 15 July 2022, Dr Golowenko noted prescriptions to OxyContin and Tramadol and “xray right knee.(pain, ?cause)”.

Scans

The report of an X-ray of Mr Arkwright’s right knee on 10 September 2019[3] shows:
“Findings: there has been previous ACL repair. There is advanced osteoarthritis of the knee with bone on bone joint space narrowing at the lateral compartment and an associated valgus deformity. There is moderately advanced OA at the patellofemoral and medial compartment. There is a small joint effusion in the suprapatellar pouch.”
[3] ARD page 17.

Dr Donnellan’s report

Dr Donnellan reported to Dr Khoo on 20 June 2017.[4] He noted that Mr Arkwright “had a right ACL repair in the past”. He noted an MRI which showed “an acute L4/5 disc prolapse associated with modic changes”. He said he had had “a frank discussion” with Mr Arkwright about the severity of his pain and “also the motor deficit that he has which has a high likelihood of requiring surgery”. However, Dr Donnellan said, “in order to see if it is possible for him to avoid that course”, Mr Arkwright was going to undergo an L4/5 perineural steroid injection. If that did not give him relief, then he would need a surgical decompression.
[4] ARD page 19

Dr Hartnell’s report

Dr Hartnell saw Mr Arkwright on 11 September 2019 and reported to Dr Khoo.[5] On
[5] ARD page 19.
[6] ARD page 21.
16 September 2019, he requested authority to carry out a right total knee replacement and provided a quote to the insurer.[6] He has now provided an updated quote.
Dr Hartnell reported that Mr Arkwright was “really … having trouble with this right knee”. He noted the history of his back injury and said he thought there was “some nerve root irritation down his left leg”. He noted that Mr Arkwright had “multiple operations with [sic] sounds like cages and disc replacements” none of which had gone very well.
Dr Hartnell reported that Mr Arkwright’s right leg had recently “been becoming more problematic” and was unstable as well. He noted “the right leg had an ACL reconstruction 20 years ago”. He said he “has clearly no ACL left and he has some laxity of the lateral collateral ligament”.
Dr Hartnell described Mr Arkwright as being “between a rock and a hard place with regard to this right knee”. He said “[a]t his age I would always be keen to try nonoperative measures but… I really don’t think there are any nonoperative measures that he hasn’t tried already”. Dr Hartnell said a knee replacement was “the only option for him” and it should at least be considered, “even despite his young age”. He said Mr Arkwright was “going backwards at a great rate of knots” and was very keen to get back to work. Considering that it was his only option, Dr Hartnell said he was “quite happy” to offer that treatment.

Dr Gronow’s report

Pain specialist, Dr David Gronow, saw Mr Arkwright on 16 February 2021 and reported to the insurer.[7] His report was largely directed to whether medicinal cannabis was an appropriate therapy for Mr Arkwright. He took a history from Mr Arkwright consistent with other doctors. He noted the various procedures Mr Arkwright had undergone.
[7] Reply page 26.
Relevant to this claim, Dr Gronow noted Mr Arkwright’s current complaints and “a history of right knee pain, secondary to osteoarthritis [but] nowhere near as significant as his back and leg pain”. Mr Arkwright said his physiotherapist had given him a transcutaneous nerve stimulator which he used at home and found of some help “for his back pain only”. He noted the medications Mr Arkwright was prescribed and that he had recently commenced taking medicinal cannabis.
Dr Gronow reported that, on examination, Mr Arkwright’s “gait was extremely slow and antalgic”. He noted restrictions in his movement.

Dr Deshpande’s report

Dr Sham Deshpande, orthopaedic surgeon, saw Mr Arkwright for assessment on
4 December 2019 at the request of the respondent. He provided a report dated
[8] Reply page 21.
8 January 2020.[8]
Dr Deshpande took a history of Mr Arkwright’s injury in 2017 and noted that he had undergone three surgical procedures on his back under Dr Donnellan. He noted that
Mr Arkwright attempted to return to work after the first procedure but “this was short lasting”.
With respect to Mr Arkwright’s right knee, Dr Deshpande noted that he underwent an ACL reconstruction some 22 years earlier after an injury in a football game. He noted that
Mr Arkwright “recovered well after the ACL reconstruction and returned to normal work”.
Mr Arkwright said “his right knee became gradually painful and he has noticed this more since his back surgery and the left leg radiculopathy”.
Dr Deshpande took a history that Mr Arkwright’s “right knee became gradually painful and he has noticed this more since his back surgery and the left leg radiculopathy”. On examination, Dr Deshpande noted “antalgic gait” and other findings including “ACL grade 1 instability”. He noted that the X-ray of the right knee showed “old internal fixation used for ACL reconstruction”. He also noted “severe lateral compartment osteoarthritis with valgus deformity of knee. Patellofemoral arthritis of the right knee”.
Dr Deshpande diagnosed “long-standing lateral compartment osteoarthritis of right knee”. And he said Mr Arkwright’s work was “not a substantial contributing factor” to his right knee condition. He said:
“… it is related to the old ACL injury and surgical reconstruction. The details of which are not known to me. Quite often there is an associated lateral meniscal injury at the time of the original injury. If such is the case, then he may have undergone a lateral meniscectomy at that time causing early onset of lateral compartment osteoarthritis as seen on the present x-rays.”
With respect to the proposed treatment, Dr Deshpande said the knee replacement “is reasonable but I believe this is not work related”. He said the osteoarthritis was “well advanced” and any other alternative was “unlikely to help very much”. He said Mr Arkwright would need a total knee replacement in the near future and, if successful, he could return to most of his pre-injury duties with some restrictions.

Dr Bodel’s report

Dr James Bodel, orthopaedic surgeon, saw Mr Arkwright for assessment on 30 August 2021 at the request of his solicitors.[9]
[9] ARD page 22.
Dr Bodel took a history of Mr Arkwright’s injury on 15 May 2017 consistent with others. He noted the first surgery performed by Dr Donnellan after which Mr Arkwright was able to return to work “initially doing light duties on reduced hours”. He noted that, after post-operative physiotherapy and treatment from an exercise physiologist, Mr Arkwright was able to return to work with a 15kg lifting limit.

Dr Bodel noted that the pain “never completely resolved” and Mr Arkwright continued to have back pain and left leg pain. Further surgery made the pain worse, and further surgical procedures did not help.
Dr Bodel noted the knee reconstruction for the ACL rupture when Mr Arkwright was in his 20s. He noted that the knee pain had “steadily deteriorated … over time because he has been squatting and kneeling more because of the back complaint, where he cannot bend and lift”. He noted Mr Arkwright had “developed a gradual onset of increasing right knee pain following his long drawn out problem with his back”, and that he “uses a walking stick to get around”. He had “visible swelling and degenerative change in the region of the right knee and a restricted range of knee movement”.
Dr Bodel said:
“He has had a series of four surgical procedures on the back and he now has an aggravation of arthritic change in the region of the right knee which dates back to an original ACL reconstruction … and now has an arthritic knee that needs knee replacement.”
Dr Bodel said:
“… the nature of his injury to the right knee is the aggravation, acceleration, exacerbation and deterioration of that disease process which is the arthritic change in that knee and has come about because of the chronic back pain and his inability to bend or lift and therefore he had to kneel and squat as an alternative.”
In response to questions, Dr Bodel said that, in addition to the lower back injury, Mr Arkwright “has had the aggravation, acceleration, exacerbation and deterioration of his arthritic knee on the right side for which he needs a knee replacement”. His prognosis remained guarded. A total knee replacement “should greatly improve knee function”.
Dr Bodel considered the treatment recommended by Dr Hartnell was reasonably necessary. He said Mr Arkwright “has end stage arthritic change in that right knee which has been aggravated by his abnormal gait pattern and his need to kneel and squat because of the back complaint”. He then said:
“The nature and conditions of his work and the injury to the back has caused significant aggravation, acceleration, exacerbation and deterioration of the right knee condition which was a pre-existing condition and that aggravation, acceleration, exacerbation and deterioration is the main contributing factor to this circumstance.”
In response to further questions, Dr Bodel restated his opinion in much the same terms.

SUBMISSIONS

Submissions were recorded and a copy of the recording and transcript are available.

The applicant’s submissions

Ms Compton submits that the test to be applied in determining Mr Arkwright’s claim is that in Murphy v Allity Management Services[10], being whether, applying a common sense test, his accepted injury made a material contribution to the need for the proposed treatment.
[10] [2015] NSWWCCPD 49 (Murphy).
With respect to Mr Arkwright’s knee injury approximately 22 years ago, Ms Compton submits that the evidence is that he fully recovered; there is no evidence of ongoing problems or that he could not maintain his employment following that injury.
Ms Compton submits that the injury in 2017 was serious and led to four surgical procedures, each of which was a significant spinal operation. None made any lasting improvement and Mr Arkwright was on high doses of strong painkilling medication. He describes the loss of strength in his left leg, that he changed how he walked and that his right leg gave way.
Ms Compton submits that the general practitioners’ records show that, on 29 May 2017,
Mr Arkwright reported that he was “unable to bend” and had been doing “lots of bending” at work and, later, that he was unable to work because it involved “lots of bending and lifting”. In November 2017 he could only manage restricted duties. In January 2018 he had been “kneeling to avoid bending”. He continued to report pain in his lower back and left leg up to
4 September 2019 when Dr Khoo recorded that his right knee tended “to give away” and had been causing falls over the last 12 months, more frequently recently. On 11 September 2019 he had increased pain in the right knee.
Ms Compton submits that, at least by September 2019, Mr Arkwright’s right knee condition had “crystallised” and he has complained of pain in it since. His doctors’ notes do not specifically deal with the right knee prior to that date; his focus had been on the lumbar spine and left leg pain.
With respect to Dr Golowenko’s note of 15 July 2022 querying the cause of Mr Arkwright’s right knee pain, Ms Compton submits that I would not be troubled by this. Ms Compton submits that no one has asked the doctor about this and the fact remains that Mr Arkwright has had documented right knee pain since 2019. No fresh reasons for requesting an X-ray in July 2022 have been advanced, and one can only speculate what the note means.
Ms Compton submits that Dr Hartnell’s report of 11 September 2019 confirms that
Mr Arkwright was having trouble with his right knee. Dr Hartnell noted that “at his age” he would be keen to try non-operative measures but a total knee replacement was the only real option. He notes the anterior cruciate ligament reconstruction 20 years earlier but does not comment on it.
Ms Compton submits that Dr Bodel noted that Mr Arkwright’s back and left leg pain never completely resolved after the injury, and steadily deteriorated. Dr Bodel noted a gradual onset of right knee pain as a result, and that Mr Arkwright used a walking stick. He noted that
Mr Arkwright was kneeling and squatting because he could not bend due to his chronic lower back pain. Ms Compton submits that I would accept that Mr Arkwright could not bend or lift because of his lower back condition.
Ms Compton submits that the fact that Dr Bodel did not have scans available had limited weight in affecting his opinion. He had noted the prior ACL reconstruction, and considered the injury aggravated the osteoarthritis in the right knee which all the doctors agree exists.
Mr Compton submits that I would be comfortably satisfied, on the commonsense test, that the osteoarthritis in Mr Arkwright’s right knee was aggravated as a result of the lower back injury.
With respect to Dr Deshpande, Ms Compton submits that he noted Mr Arkwright recovered well and returned to normal work following the ACL reconstruction. He noted the symptoms of lower back and left leg pain following the injury in 2017, and he noted Mr Arkwright’s antalgic gait in January 2020. Ms Compton submits that Dr Deshpande’s findings on examination in person were similar to those by Dr Bodel who saw Mr Arkwright by telehealth.
Ms Compton submits that Dr Deshpande noted that the details of the old ACL injury were not known to him and he referred to possible associated meniscal injury at the time, but he did not deal with what was in front of him, namely the onset of pain after the lower back injury.
Ms Compton submits that Dr Gronow took the same history as the other doctors and he noted Mr Arkwright’s antalgic gait.
Ms Compton submits that the weight of the evidence supports the conclusion that
Mr Arkwright’s lower back injury contributed materially to the need for the total right knee replacement.

The respondent’s submissions

Mr Perry submits that there is no dispute that Mr Arkwright has serious pain in his right knee and needs a total knee replacement but he has not discharged the onus of establishing that the need for treatment is a consequence of his accepted lower back injury.
Mr Perry agrees that the test is whether Mr Arkwright’s lower back injury made a material contribution to the need for the proposed treatment. He refers to the test set out in Murphy and submits that, on a careful reading, that case, in which the worker was already a candidate for right shoulder surgery, contrasts sharply with this.
Mr Perry submits that we know from Dr Bodel’s report that Mr Arkwright has significant osteoarthritis in the right knee warranting surgery. The osteoarthritic change was present at the time of injury and was long-standing. Mr Perry submits that Mr Arkwright’s claim can only succeed if he can establish an aggravation of that condition.
With respect to Dr Deshpande, Mr Perry submits that he gives unchallenged evidence that surgical reconstruction such as that Mr Arkwright underwent some 22 years ago is often associated with lateral meniscus injury.
Mr Perry submits that, while Mr Arkwright says he made a complete recovery from the ACL reconstruction, there is no evidence as to how long it took him to recover.
Mr Perry submits that we know from his evidence that Mr Arkwright started his business in 2016. According to his evidence, a lot of the work was heavy including lifting heavy machinery which led to the injury in 2017. His evidence is that he worked long hours.
Mr Perry submits that it can be inferred from the nature of Mr Arkwright’s business and duties involving marking up and laying surfaces on sports courts, that the work involved kneeling and squatting. That is, he was doing that activity from 2016 and not only after the lower back injury.
Mr Perry refers to the comments of Deputy President Wood in Secretary, Department of Education v BB[11] with respect to a psychological injury that, where there is more than one potentially causative of the event, whether events were causative of the injury requires medical evidence and “is a matter for medical opinion”.
[11] [2021] NSWPICPD 21 at [188].
Mr Perry submits that Dr Bodel specifically implicates the nature and conditions of
Mr Arkwright’s work as well as the accepted injury to his back. Mr Arkwright does not say he was not kneeling prior to his back injury and he does not say that he had to change the nature and conditions of his duties.
Mr Perry submits that, in order to make out the claim of consequential condition, it is necessary to compare Mr Arkwright’s work before and after the accepted injury. Mr Perry agrees that the need to kneel and squat has had a role to play but Dr Bodel seems to take an incorrect view that kneeling and squatting was caused by the lower back injury when that is not made out on the evidence. Mr Perry submits that something had to change to establish the causal link.
With respect to evidence that Mr Arkwright’s right knee had been giving way in the 12 months up to September 2019, Mr Perry submits this is consistent with his long-standing condition. Insofar as there was any problem with his gait, Mr Arkwright implicates his right leg, not because he was favouring his left. The only evidence of the cause of the falls is his right leg, unrelated to any pain in the left.
Mr Perry submits that Dr Hartnell does not offer a view about causation. It may be inferred from his reference to the ACL reconstruction that Dr Hartnell considered there was a significant link. Mr Perry submits that the evidence shows that Mr Arkwright had an ACL reconstruction, that he was doing heavy work from at least 2016, putting strain on his right knee, which explains why it became painful in 2018 and 2019.
Mr Perry submits that it cannot be inferred from the fact that the right knee problems followed the lower back injury, that the lower back injury was causative. The strong alternative proposition is that the heavy work Mr Arkwright did on a background of the ACL reconstruction was the cause.

SubmissionS in reply

In reply, Ms Compton submits that the ARD pleads “further injury to his right knee as well as aggravation of a prior condition due to altered gait, falls due to loss of strength and giving way and increased kneeling and squatting”. Ms Compton submits they all contributed to the need for the proposed treatment. Even if, as the respondent submits, there was another reason, there can be more than one factor making a material contribution.
Ms Compton submits that Mr Arkwright describes the nature of his duties and scope of work in his evidence, including he would have two to four others helping him; there is no evidence that he was doing bending and lifting every day. He returned to work after his injury on light duties in a supervisory role. There is no evidence that he was doing heavy work after his injury but there is evidence of his antalgic gait, that he had falls, and that he was kneeling and bending, all of which resulted in the consequential condition.

CONSIDERATION

Section 60(1) of the Workers Compensation Act 1987 (the 1987 Act) provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that Mr Arkwright sustained injury to his lumbar spine in the course of his employment with the respondent on 15 May 2017. There is no dispute that the treatment proposed by Dr Hartnell is reasonable treatment for his right knee condition. At issue is causation, whether Mr Arkwright suffered a consequential condition in his right knee as a result of the accepted injury to his lumbar spine.
Mr Arkwright’s work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy, Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates[12] as follows:
“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.”
[12] 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Mr Arkwright bears the onus of establishing, on the balance of probabilities, that the proposed treatment is reasonably necessary as a result of the injury to his lumbar spine, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[13] and Nguyen v Cosmopolitan Homes.[14]
[13] [2008] NSWWCCPD 134.
[14] [2008] NSWCA 246.
Mr Arkwright must establish, on the balance of probabilities, that his work injury made a material contribution to the need to the right total knee replacement.
There is no dispute that Mr Arkwright had a sporting injury approximately 22 years ago which required ACL reconstruction. There is no dispute that he has advanced osteoarthritis in the right knee. None of the doctors comments directly on any connection, and the relationship between the two is not clear from the evidence.
Mr Perry submitted that it can be concluded from the fact that Dr Hartnell referred to the ACL construction that he considered it a significant factor. I do not think that inference can be drawn from his report. Dr Hartnell had the X-ray (or the report) which showed the ACL repair and advanced osteoarthritis. Not surprisingly, he noted “the right leg had an ACL reconstruction 20 years ago”. He said Mr Arkwright “has clearly no ACL left and he has some laxity of the lateral collateral ligament”. He did not make any observation about any connection between the ACL reconstruction or the lumbar spine injury to the condition of the right knee. Dr Hartnell is the treating doctor and was not concerned with causation. It would be speculating to conclude anything about causation from his report.
Mr Arkwright’s unchallenged evidence is that he “recovered well” after the ACL reconstruction and he had no ongoing problems. Mr Perry submits that, while he says he made a complete recovery, there is no evidence as to how long that took.
Unfortunately, despite searches, no clinical records or reports are available from
Mr Arkwright’s doctors at the time that might indicate how long it took him to recover. It is true that there is no evidence as to what work he did from that time up until 2016 when he started his own business. However, it was open to the respondent to ask him about his employment history, or seek to obtain his financial records, but it did not.
Dr Deshpande took a history that Mr Arkwright “recovered well after the ACL reconstruction and returned to normal work”. He evidently accepted that history.
The records from Eastbrooke Medical Centre date from 11 February 2016, after Mr Arkwright moved from Queensland to Bowral in New South Wales. The records show that he saw doctors approximately monthly with various complaints until 18 August 2016. There is no reference to his back or right knee. The next entry is on 29 May 2017 when he saw Dr Khoo about the workplace injury to his back. The first reference to his right knee is on
4 September 2019 when Dr Khoo recorded that he had “pain+++” in his right knee which tended to give way and had been causing falls over the previous 12 months, more frequently recently.
The fact that there is no record of any problem with his right knee in approximately 2½ years of seeing his doctor lends support to Mr Arkwright’s evidence that he had no ongoing problems with his right knee after he recovered from the ACL reconstruction.
Absent any evidence to the contrary, I accept Mr Arkwright’s evidence that he recovered well after the ACL reconstruction and had no ongoing problems with his right knee.
Mr Arkwright’s evidence is that working in his own business included “everything from surface preparation, painting, line marking, to job allocation, demonstration and supervision as well as cleaning”. He used machinery including generators, drills, mixes, blowers, grinders and jackhammers. The machinery and paint could not be left on site and had to be packed up and moved each day. He worked long hours, normally six days a week, starting early to prepare the surface by marking up, taping areas and laying plastic. Most of the time he would have two to four men working with him.
Mr Perry submits that it can be inferred that Mr Arkwright was kneeling and squatting prior to the injury on 15 May 2017 and that there was no change in his duties as a result of his back injury. Mr Perry submits that Mr Arkwright needs to show that the back injury led him to change how he worked (because he could not bend over), and to increased kneeling and squatting, in order to make out the claim of consequential condition.
Mr Arkwright does not dispute doing some kneeling and squatting prior to his injury.
Ms Compton submits that he had two to four others helping him. I understand the submission to be that there was not a great deal of kneeling and squatting. Mr Arkwright does not state in his evidence that increased kneeling and squatting following his back injury led to increased pain in his right knee. He attributes the consequential condition to his antalgic gait. Mr Arkwright is not a doctor and he is not qualified to make that assessment.

The medical evidence indicates that Mr Arkwright was not able to bend over, and
Dr Bodel attributes the aggravation of his osteoarthritis to increased kneeling and squatting.
Dr Khoo’s records tend to support the submission that Mr Arkwright had to do increased kneeling and squatting after his injury. On 29 May 2017, she recorded that he was “unable to bend”, that he was “doing lots of bending, lifting at work”. I understand her to refer to a time prior to the injury because she said it had caused him some pain but it “usually settled” with heat and massage, but “not this time”.
On 2 June 2017, Dr Khoo recorded that Mr Arkwright’s back pain was not responding to medication and that he was unable to work “as work involves lots of bending lifting”.
Dr Bodel noted the ACL reconstruction and that Mr Arkwright’s knee pain had “steadily deteriorated … over time because he has been squatting and kneeling more because of the back complaint, where he cannot bend and lift”.
I accept that Mr Arkwright had to perform increased kneeling and squatting after his back injury.
I also accept there was a change in Mr Arkwright’s gait because of the workplace injury. There is no dispute that he suffered severe lower back and left leg pain following the injury. He says that, as a result of his injury, he lost strength in his left leg. He favoured his right leg and changed the way he walked. About two years after the injury, his right knee became painful and, after his second back operation, it started to give way, causing him to fall over.
On 5 August 2020, Dr Khoo recorded that Mr Arkwright’s legs “went under him” the previous week; he landed on his knees and could not get up. He had “pain+++” since and needed walking sticks to walk.
On 25 February 2021, Dr Gronow reported that, on examination, Mr Arkwright’s “gait was extremely slow and antalgic”. On 4 December 2019, Dr Deshpande noted Mr Arkwright’s “antalgic gait”. On 30 August 2021, Dr Bodel noted that he used a walking stick “when he ambulates” and that the osteoarthritis in his right knee had been aggravated “by his abnormal gait pattern”.
Dr Deshpande’s and Dr Bodel’s reports both have their difficulties.
Dr Deshpande diagnosed long-standing lateral compartment osteoarthritis of the right knee. He noted the ACL reconstruction, the details of which he said were not known to him. He then said “quite often” there was an associated lateral meniscal injury at the time of the original injury and, if so, Mr Arkwright “may have undergone” a lateral meniscectomy at the time, causing early onset of the lateral compartment osteoarthritis seen on the X-rays. The first difficulty with that statement is that it is speculation. Secondly, there is no dispute that
Mr Arkwright has severe osteoarthritis in the lateral compartment of the right knee.
In response to a question whether Mr Arkwright’s work had been a main or substantial contributing factor “to his right knee injury”, Dr Deshpande stated simply that it was “not a substantial contributing factor [to his] right knee condition”. He attributed the condition entirely to the “old ACL injury and surgical reconstruction” the details of which he said were not known to him. He did not offer any further explanation, even though he took a history from Mr Arkwright that the right knee had become more painful since his back injury and the left leg radiculopathy. He did not clearly explain his conclusion.
Dr Bodel supports Mr Arkwright’s claim that he suffers a consequential condition in his right knee as a result of his back injury. His responses to questions about causation are not entirely clear. He refers to the end stage arthritic change having been aggravated by Mr Arkwright’s abnormal gait and the need to kneel and squat because of his back complaint. He then states that the “nature and conditions of his work and the injury to the back” had caused significant aggravation of the pre-existing condition.
Reading Dr Bodel’s report as a whole, I do not understand him to say that the nature and conditions of Mr Arkwright’s work, of themselves, or alone, caused the aggravation. I understand him to say that the nature of his work required him to bend down which he could no longer do following his back injury, leading to increased kneeling and squatting. I also understand him to say that the abnormal gait that he developed because of the lower back and left leg pain played a part.
I prefer Dr Bodel’s opinion to that of Dr Deshpande. They agree that Mr Arkwright has long-standing, now severe, osteoarthritis in his right knee. Dr Bodel explained the nature of the aggravation of that condition as a result of his injury. In my view, Dr Deshpande did not engage sufficiently with the question asked of him or with whether there was any contribution by his work injury.
Mr Perry submits that the fact that Mr Arkwright’s right knee had been giving way in the 12 months up to September 2019 is consistent with his long-standing osteoarthritis. Mr Perry submits that the only evidence of the cause of the falls is his right leg, unrelated to pain in the left. Further, that Mr Arkwright was doing heavy work from at least 2016, putting strain on his right knee, which explains why it became painful in 2018 and 2019.
Mr Perry submits that it cannot be inferred from the fact that the right knee problems followed the lower back injury, that the lower back injury was causative. I agree. However, the difficulty with the submission that the heavy work Mr Arkwright did on a background of the ACL reconstruction was the cause of his right knee problem is that there is no medical evidence to that effect. Even if there was some evidence to that effect, it would not preclude a finding in Mr Arkwright’s favour because, as the decision in Murphy makes clear, a condition can have multiple causes; the work injury does not have to be even a substantial cause of the need for treatment. The facts in Murphy were different but the principle remains.
Considering all of the evidence, I find that Mr Arkwright’s sporting injury resolved and he had no further symptoms of any significance prior to the workplace injury on 15 May 2017. I am satisfied that, as a result of his lower back pain, he had difficulty bending and modified his duties by increased kneeling and squatting. I am satisfied that, as a result, he suffered aggravation of the advanced osteoarthritis in his right knee for which he now requires a total knee replacement.
I am satisfied, on the balance of probabilities, that Mr Arkwright’s lower back injury has made a material contribution to the need for the total knee replacement.

[2022] NSWPIC 511

15 September 2022