Atkins v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Atkins v State of New South Wales (NSW Police Force) [2021] NSWPIC 398
APPLICANT:	Kevin Atkins
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	John Wynyard
DATE OF DECISION:	6 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Application for a declaration that left total knee replacement surgery reasonably necessary; whether respondent medico-legal expert correct that onset of osteoarthritis, being familial and inherited, was not work-related; whether applicant statement relating to events of many years ago reliable without contemporaneous support; whether 1995 injury caused the onset of arthritis or made asymptomatic condition symptomatic; Held - injury was post-traumatic onset of osteoarthritis; applicant’s evidence regarding period of self-managed treatment acceptable in view of his character and background of earlier left knee arthroscopies; respondent medico-legal expert’s assumptions unsupported by evidence; finding of injury made, declaration that treatment reasonably necessary, and order for respondent to pay the costs of the treatment.
DETERMINATIONS MADE:	1. The applicant suffered an injury on 28 September 1995, thereby causing chondral damage that subsequently led to the onset of an osteoarthritic condition in his left knee. Thereafter the nature and conditions of the applicant’s employment as a police officer aggravated that condition until he sought further medical treatment in the form of a left total knee replacement.
DECLARATIONS MADE:	2. The recommendation for a total knee replacement is reasonably necessary treatment.
ORDERS MADE:	3. The respondent will accordingly pay for the costs of and associated with the total left knee replacement surgery proposed by Dr Burneikis on 19 September 2019.

STATEMENT OF REASONS

BACKGROUND

Kevin Atkins, the applicant, brings an action against the State of New South Wales (NSW Police Force), the respondent for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the proposed total left knee replacement surgery is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) was employment the main contributing factor to the onset of Mr Atkins’ osteoarthritic left knee?
(b) is the proposed surgery reasonably necessary?

PROCEDURE BEFORE THE COMMISSION

The matter was heard by way of telephone conciliation/arbitration conference on
8 September 2021. The applicant was represented by Mr Luke Morgan of counsel instructed by Mr Peter Naddaf of Law Partners. The respondent was represented by Ms Lyn Goodman of counsel instructed by Mr Brayden Mead of Rankin Ellison Lawyers. 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) ARD and attached documents, and
(b) Reply and attached documents.

Oral Evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

Applicant’s statement 16 April 2021

Mr Davy made a comprehensive statement that contained the particulars of the visits he had made to the various medical practitioners he consulted down the years, the dates of the imaging taken, and the arthroscopic procedures performed. The opinions given by these various practitioners were also reproduced in Mr Davy’s statement, which was dated 16 April 2021. The chronology of events is well set out therein.
Mr Atkins has been a serving Police Officer since 1988. During that time he had suffered a number of injuries in the course of his duties including injuries to both his knees and shoulders. In his statement dated 16 April 2021 he recounted that on 28 September 1995 he was injured when he was assaulted whilst attending a motor vehicle accident. The son of one of the drivers arrived at the scene and became violent and aggressive. During the arrest, Mr Atkins fell landing heavily on his knees experiencing intense pain in both knees.
He was taken to hospital, and as the left knee failed to improve, was referred to Dr Allen Turnbull, Orthopaedic Surgeon, on 1 March 1996, for management.
Mr Atkins underwent physiotherapy and a cortisone injection without relief. As a result, on 31 July 1996 an arthroscopy was undertaken under the care of Dr Turnbull. Mr Atkins said that following the arthroscopy he no longer felt significant pain on a daily basis and was able to walk and stand without experiencing “debilitating pain”. He was accordingly able to return to his full-time duties.
Mr Atkins said that on 26 January 1997, whilst working on Australia Day, he was required to walk and stand for prolonged periods of time which aggravated his left knee pain. His knee became swollen and he needed to have some days off work.
On 19 February 1997 Dr Turnbull advised that symptoms were not severe enough to warrant further surgery, after x-rays had been taken on 12 February 1997. Mr Atkins was told that there would be most probably a deterioration in the future and he would probably need further surgical intervention.
Mr Atkins said that the pain in his knee persisted through 1997 until 11 October 1997 when he had an x-ray taken. On 24 October 1997 he again consulted Dr Turnbull. Dr Turnbull advised that the damage in the knee was permanent and that he needed to consider a more sedentary role at the Police Force.
Mr Atkins reluctantly acceded and was placed on full time restricted duties in an administrative position.
He consulted with his Woy Woy GP Dr Burke in September 1998, advising him of the regular episodes of his left knee giving way and intermittent pain and suffering. He was referred by Dr Burke to Dr Malcolm Glase, Orthopaedic Surgeon, whom he saw on 18 September 1998. Dr Glase recommended exercises to improve strength and mobility.
On 9 August 2000 Mr Atkins saw Dr J.D. Malley, a GP to whom he complained of significant pain and swelling in his left knee. He was advised to rest his knee.
On 8 October 2001 Mr Atkins saw a Morisset GP, Dr Alan MacPherson, about his persisting left knee pain and was advised to have further scans taken. Dr MacPherson referred
Mr Atkins to Dr Jonathan Young, Orthopaedic Surgeon, who recommended the second arthroscopy. This occurred on 21 November 2001 and the result was beneficial, in that it improved the pain in Mr Atkins’ left knee.
Mr Atkins still experienced symptoms in his left knee but because he was working in a sedentary role, his left knee was not subject to the strains of active duty.
Between 2003 and 2007 Mr Atkins said he did return to full duties. He said[1]:
“35. From around 2003 to 2007, I returned to full duties as a police officer. Although I experienced ongoing pain in my left knee, I wanted to return to my pre-injury role as I loved my job and this was the reason why I pursued a career as a police officer. Throughout this time, I self-managed my injury by taking analgesic medication and engaging in at-home exercises to strengthen my quad and hamstring. However, I felt my left knee injury never fully resolved. As such, I would have to take days off work on occasion when I experienced a flare-up of pain in my left knee.”
[1] ARD page 6 at [35].
Mr Atkins then described a further event when he again fell to the ground landing heavily on his right knee and right shoulder whilst making an arrest on 23 March 2007. Treatment involved a total right knee replacement in 2015 and rotator cuff repair to his right shoulder.
Mr Atkins said at [37]:[2]
“From 2007 to 2019, I focused on treating and managing the injuries to my right knee and right shoulder. However, throughout this time, the pain in my left knee persisted. Following the surgery to my right knee, I relied heavily on my left knee to carry out daily duties such as walking, standing and twisting. As such, this overreliance further aggravated my left knee injury and caused the pain and symptoms to worsen.”
[2] ARD page 6.
Because of the increase in his symptoms, Mr Atkins attended on his Wallarah Bay GP,
Dr Pravesh Shah on 29 August 2019. An MRI scan was taken and Dr Shah told Mr Atkins on 9 September 2019 that he had a torn meniscus. He was therefore referred to
Dr Anthony Burneikis, Orthopaedic Surgeon, for management.
Mr Atkins saw Dr Burneikis on 19 September 2019. By that stage Mr Atkins could no longer fully extend his left leg and he was troubled to stand or walk for prolonged periods.
An x-ray was taken and Dr Burneikis told Mr Atkins that there was no cartilage in his knee and he has “bone on bone”. A total left knee replacement was accordingly recommended.
On 15 August 2020 Mr Atkins said he was walking through his office at work when he accidently knocked his left knee against a corner of a set of officer drawers. This caused immediate and excruciating pain in the left knee which became rapidly swollen. (This date conflicts with the history taken by Dr Burneikis, as will be seen, who recorded the event in his report of 19 September 2019 as occurring in December 2018).
He has since continued to experience significant pain in his left knee.

Dr Allen Turnbull

On 7 March 1996 Dr Turnbull reported that Mr Atkins had patellofemoral pain with some medial joint line tenderness in the left knee which made Dr Turnbull think that a meniscal tear was possible. [3]
[3] ARD page 47.
Dr Turnbull’s operation report of 1 August 1996 found that there was chronic fissuring over the medial femoral condyle, extending from its lateral surface onto the weight bearing area, which area was debrided. He said: [4]
“Hopefully this procedure will give some relief but the chondral damage noted will progress over years and as it involves the weight bearing surface, may cause premature arthritis in the knee.”
[4] ARD page 29.
At a review on 19 February 1997 Dr Turnbull noted continuing pain in the knee which was not severe enough to warrant any further intervention, but again Dr Turnbull expressed the opinion that in the future he was likely to deteriorate and require more surgery.

Dr Jonathon Young

Dr Young was an Orthopaedic Surgeon to whom Dr Macpherson referred the applicant. He performed the arthroscopy in 2001. His operation report of 12 November 2001 stated:[5]
“…The left knee was stable. Standard arthroscopic portals were made revealing grade Ill change upon the undersurface of the patella with some generalised thinning within the trochlea. The medial compartment showed an area where I suspected a chondroplasty had been performed some years before upon the medial femoral condyle. There was an extensive area of fibrocartilage which appeared to be in reasonable condition. The medial meniscus was torn and this was resected to a stable edge. The ACL and PCL were intact. The lateral compartment showed an intact lateral meniscus and normal articular cartilage...”
[5] ARD page 33
On 5 August 2003 Dr Young reported:[6]

“I reviewed Kevin Atkins today. He returned for a clearance to resume normal duties with the NSW Police Force.
I can see no reason why Mr Atkins should not undertake normal duties; he has been playing squash for 12 months and experiences no pain in the left knee.”

[6] ARD page 78

Dr Young was also Mr Atkins’ surgeon after Mr Atkins had injured his right knee struggling with offenders at the Jewells Town Tavern on 23 March 2007. Mr Atkins firstly had no treatment, as he thought it would settle spontaneously, but by 27 August 2009 was referred to Dr Young as his right knee started to become stiff and sore. Imaging demonstrated
tri-compartmental osteoarthritis.[7]

[7] ARD page 81

On 14 September 2009 Mr Atkins underwent an arthroscopy of his right knee with Dr Young at Warners Bay Private Hospital. There were grade III and grade IV changes discovered.[8]

[8] ARD page 83

Mr Atkins continued to be treated by Dr Young for his right shoulder injury, and the right knee. However on 27 April 2015, Dr Young reported that the right knee had to be replaced, as Mr Atkins was struggling to walk up and down stairs, he could not run, and his sleep was being disturbed by his knee.[9]

[9] ARD page 90

The right total knee replacement surgery was performed by Dr Young on 22 July 2015, and the cost was met by the respondent.

Dr Anthony Burneikis

Dr Burneikis first reported on 19 September 2019[10]. He took a history of the problems dating back to the 2007 incident. He said:
“[Mr Atkins] is a 59 year old Police Officer who presents for opinion regarding left knee pain. Problems date back to a significant injury during an altercation in 2007 where he was attempting to restrain someone albeit with assistance but suffered a fall. He suffered injuries to both knees and the right shoulder. He subsequently had right total knee replacement in 2015 and has had right shoulder rotator cuff repair. At the time of initial injury, the left knee was not investigated but he has always had some degree of pain and aching.”
[10] ARD page 27.
Dr Burneikis took a consistent history of the ongoing problems of pain, particularly in the medial aspect of the knee, reported by Mr Atkins. An MRI scan was taken which showed severe osteoarthritic change in the medial compartment with bone-on-bone arthritis and bone oedema on both the femoral and tibial side. He noted also a medial meniscal tear and extrusion. Dr Burneikis said[11]:
“In my opinion, Mr Atkins problems now relate predominantly to his medial compartment osteoarthritic change. I organised plain weight bearing X-rays and these show bone on bone arthropathy in the medial compartment with minor lateral spurring and patellofemoral change. Overall at his age and with previous right knee replacement, the overwhelming pathology is osteoarthritic change in the left knee…..”
[11] ARD page 27.
Dr Burneikis recommended the left total knee replacement, which is the subject of this application. He said[12]:
“Mr Atkins is aware that hitting the knee in the office was not the cause of his arthritis but it most likely exacerbated this long standing changes most likely related to his initial injury in 2007…..”
[12] ARD page 27.
In a report dated 16 October 2019[13], whilst answering questions from the insurer,
[13] ARD page 28.
Dr Burneikis said that the extent of osteoarthritic change in the knee was a condition that had “likely developed over a number of years”. He said that the need for left total knee replacement was not purely as a result of the injury in 2018 but was most likely relating back to 2007 “of which I do not have all the details”.

Dr James Bodel

Mr Atkins retained Dr James Bodel, Orthopaedic Surgeon, as his medico-legal specialist.
[14] ARD page 35.
Dr Bodel reported on 19 August 2020[14].
Dr Bodel took a history of the injury of 28 September 1995 and noted the treatment by
Dr Turnbull with the subsequent arthroscopy, after which Mr Atkins returned to full duties.
Dr Bodel noted that Mr Atkins had undergone an arthroscopy which showed a torn meniscus and early arthritis. He said:
“The arthroscopy I understand was done in 2001 and there has been a second arthroscopy at another time.”
Dr Bodel took a history of the injury of 23 March 2007 to the right knee and the right shoulder, noting that when he fell to the ground on this occasion he landed “mainly” on his right knee.
Dr Bodel took a general history that Mr Atkins had obtained the position as Sergeant and worked in lighter duties both with the Police Link at the 000 Call Centre and doing a period with Transit Police.
Dr Bodel recorded that Mr Atkins was on light duties until “2002,” when he returned to full duties. Dr Bodel noted that Mr Atkins’s knees had steadily deteriorated.
Dr Bodel noted the management by Dr Young and the 2015 total right knee replacement. He noted that whilst the right knee had improved and stayed fairly stable and static, the left knee had continued to steady deteriorate and was on examination in varus angulation and
[15] ARD page 40.
Mr Atkins was unable to fully extend his left knee. He described the injuries to both knees as including meniscal tears and “post-traumatic osteoarthritis in each knee”.[15]
Dr Bodel noted the report of Dr Anthony Smith, Orthopaedic Surgeon, who was retained as the respondent’s medico-legal expert. Dr Bodel said:[16]
“[Mr Atkins] clearly did suffer his injury to the left knee in the circumstance that occurred in August of 1995 and that injury has led to the post-traumatic osteoarthritis in the region of the left knee for which the knee replacement is required. It is causally related”.
[16] ARD page 39.
Dr Bodel was asked to explain the relationship between the left knee condition and Mr Atkins’ employment.[17] He said:
“4. The injury to the left knee is primarily the injury that occurred on 28 September 1995 where clinically he suffered a tear of the medial meniscus. He had an arthroscopy confirming this pathology and early arthritic change and as a result of that work related injury he has developed post-traumatic osteoarthritis. The primary cause of the ongoing pathology is the specific event at work on 28 September 1995 but the nature and conditions of his work subsequent to that is also an aggravating, exacerbating, accelerating and deteriorating factor of the underlying arthritic change. The left knee injury …. does require the left knee replacement.”
[17] ARD page 40.

Dr Anthony Smith

Dr Smith issued two reports for the respondent dated 26 November 2019 and 20 April 2020 respectively[18]. In his earlier report the injury date he was requested to examine was
[18] Reply page 1 and 6.
“20 December 2018”. Dr Smith took a history of many knee injuries whilst making arrests. He noted that “this incident in 2007” led to injury to both knees and the right shoulder. He took a history that Mr Atkins’s left knee had been “niggling ever since 2015” and had been worse over the last 12 months.
Dr Smith took a history of the knock on the knee at work against a filing cabinet on
20 December 2018, and he noted that Mr Atkins had been referred to Dr Burneikis. He saw a weight bearing x-ray dated 19 September 2019 and an MRI scan of the left knee of 3 September 2019. Dr Smith noted the history given by Dr Burneikis that both knees had been injured in the 2007 incident, but that the left knee had not been investigated. He noted the MRI results of 3 September 2019, saying that it showed bone on bone severe osteoarthritic change in the medial compartment, with a meniscal tear.
Dr Smith noted no other relevant past history.

Dr Smith’s opinion was that Mr Atkins had bilateral knee osteoarthritis, which was a familial inherited condition. He said that in 2007 Mr Atkins would have had aggravation to his osteoarthritis in both knees, the right more than the left and he would have recovered from that aggravation “after a day or so, I would have thought or one or two weeks at the very most”.[19]
[19] Reply page 3.
Dr Smith thought that the right knee osteoarthritis had been rendered symptomatic for the first time in the 2007 event. As to the left knee, he thought the 2007 event would have also caused an aggravation to the osteoarthritis in that knee. He said that the osteoarthritis would pre-date 2007 and he took a history that Mr Atkins was having much less in the way of aggravations to his left knee osteoarthritis prior to the event in 2018 when he knocked his knee against the filing cabinet. Dr Smith thought that aggravation would have resolved, as he had said earlier, in a short time He noted that the problem with knee osteoarthritis was that the condition worsened with the passing of time, more frequently and inversely with almost any weight bearing activity.

He accordingly advised that employment was not a substantial contributing factor. Employment would have been a substantial contributing factor to aggravations to the osteoarthritis on one knee or the other, and those aggravations would have occurred whether he worked or not, and no matter what sort of work he engaged in.
The weight bearing x-rays demonstrated a left knee triple compartment osteoarthritis change of long standing. The medial compartment was affected but the other two compartments were also affected, Dr Smith advised.
Regarding September 2009 MRI results, Dr Smith thought all the changes seen on the MRI pre-dated the incident on 20 December 2018 when Mr Atkins knocked his knee against the filing cabinet. Mr Atkins would have recovered in a number of hours or days. Accordingly in Dr Smith’s opinion the proposed knee replacement was not work related.
In his second report of 20 April 2020 Dr Smith acknowledge receipt of a letter from
Dr Ian Smith dated 20 January 1998 (which was not before the Commission). This letter apparently noted that Dr Ian Smith had seen the applicant on 14 May 1996 and recorded a history that on 29 September 1995 in the course of his duties, he fell to the ground with the left patella striking the ground directly.
The letter also advised the presence of chondral fissuring being found on arthroscopy on 31 July 1996. Dr Smith also saw correspondence from Dr Turnbull and Dr Young.
Dr Smith said he was not in possession of that documentation at the time of the first assessment and acknowledged that he had formed the opinion of bilateral knee osteoarthritis, a familial inherited problem, being present. Dr Smith said on reviewing the fresh information:[20]
“In my opinion, [Mr Atkins] initiated symptoms the first time, rendering his osteoarthritic left knee symptomatic for the first time, in the work injury of 1995. The right knee was not rendered symptomatic until much later.”
[20] Reply page 7.
Dr Smith said that the aggravation in 1995 would not have made the knee arthritis any worse than it was going to get with the passage of time.
In Dr Smith’s opinion the 1995 aggravation would not have caused any significant deterioration of the left knee osteoarthritis. He said:
“[Mr Atkins] would have had the same pathology present in the right knee in 1995 but was asymptomatic.”

Dispute notices

The insurer issued three dispute notices on 16 April 2020[21], 25 June 2020[22] and 4 March 2021[23].
[21] ARD page 16.
[22] Reply page 29.
[23] ARD page 20.
The s 78 notice of 16 April 2020, whilst acknowledging that an arthroscopy had been performed on the left knee in 1996, alleged that the evidence did not demonstrate that there had been a recurrence of the 1995 injury. There was no causal link with the current pathology, it was alleged.
The further dispute notice of 25 June 2020 alleged that whilst the injury of 28 September 1995 was accepted, and whilst he had undergone an arthroscopy in 2001, Mr Atkins had been fit for pre-injury duties from 11 August 2003. He had not made any complaints of injury, recurrence or aggravation until “recently”.
The notice referred to Mr Atkins’ recurrence form of 2 June 2020, which stated that he had suffered left knee recurrences on specific dates, with claim numbers provided[24]. These dates were:
·        23 March 2007;
·        20 December 2018;
·        20 March 2019, and
·        1 March 2020.
[24] Recurrence form at ARD page 13.
Further dates were added of 20 March 2007 and 29 May 2020. The records did not suggest that any of these injuries had been sustained. The notice referred to the opinion of
Dr Burneikis, noting his diagnosis of osteoarthritis in the left knee.

The notice referred to the report of Dr Anthony Smith and his opinion that osteoarthritis in both knees could have been aggravated by the 1995 injury but that it would not have caused the bilateral knee osteoarthritis to become any worse than it was going to get in any event with the passage of time. Dr Smith did not consider that the incident of 1995, or other subsequent incidents, to have advanced or substantially contributed to the current left knee injury. The notice claimed that Dr Burneikis did not make that connection either.

The third dispute notice dated 4 March 2021 confirmed the basis of the prior two dispute notices alleging, based on Dr Smith’s report that employment was not a substantial contributing factor to Mr Atkins’s bilateral knee osteoarthritis, and that the proposed total knee replacement surgery was therefore not reasonably necessary.

The notice referred to the opinion of Dr Bodel and said:
“Dr Bodel does not address or refute Dr Smith’s opinion that your condition is entirely constitutional or that you would be in essentially the same position regardless of the work that you engaged in nor does he explain his conclusion in regard to causal connection between your left knee condition and the 1995 injury”.

Clinical notes

The particularity of the applicant’s statement I infer was supplied by clinical records, which were not lodged, except for those of Dr Shah[25]. An entry dated 29 August 2019 recorded:
“Left knee has become more painful over the years.
Knocked his left knee against a set of drawers in December 2018 ->
Pain has become worse since then.”

SUBMISSIONS

[25] ARD page 131.

Ms Goodman

Ms Goodman noted firstly that there were no clinical notes from the treating practitioners from the time of the original injury of 28 September 1995. She referred to the reports of
Dr Turnbull which showed continuing left knee pain six months after the injury and she referred to the operation report of 1 August 1996, which showed chondral fissuring.
Ms Goodman claimed that chondral fissuring constituted evidence of arthritis and that chondral damage was noted in subsequent reports by Dr Turnbull. Accordingly, Mr Atkins was suffering osteoarthritis at the time of his injury in 1995, she alleged.
Ms Goodman referred to the subsequent arthroscopy by Dr Young on 21 November 2001, whereby a torn medial meniscus was discovered and resected. The arthroscopy also revealed grade III change on the undersurface of the patella with some generalised thinning within the trochlea. Dr Young noted the evidence of the chondroplasty in the medial compartment.
By 5 August 2003, Ms Goodman submitted, Mr Atkins was well on the way to recovery.
Dr Young reported that Mr Atkins had been playing squash for 12 months without any pain in the left knee and Mr Atkins was accordingly cleared to return to normal duties.
Ms Goodman said it was significant that there was no contemporaneous evidence which supported Mr Atkins’s evidence that he continued to suffer pain in his left knee until he banged it against the filing cabinet in December 2018.
In answer to a question as to whether the lack of contemporaneous evidence meant I should disbelieve Mr Atkins’s evidence, Ms Goodman submitted firstly that a perusal of that statement would indicate that it had not been prepared by Mr Atkins. Rather, Mr Atkins clearly had some assistance, probably, as I understood Ms Goodman’s submission, from his legal advisors. She submitted that Mr Atkins’ statement could not be regarded as being contemporaneous, it being dated 16 April 2021. Therefore, she submitted, Mr Atkins would have been aware of the gap between 2003 and 2018 and conveniently filled it in by saying that he self-managed his pain during that period.

Ms Goodman submitted that Dr Burneikis had taken a wrong history, and that his opinion was therefore of very little weight.
Ms Goodman submitted that I would not accept the opinion of Dr Bodel. Dr Bodel had assumed that the first arthroscopy did not occur until 2001, and that there had been a further arthroscopy since. He too had accordingly taken a wrong history.

Mr Morgan

Mr Morgan submitted that Dr Smith’s report could not be accepted. Mr Morgan argued that Dr Smith’s opinion originally was based on a history that it was in 2007 that the pre-existing osteoarthritis became symptomatic. Dr Smith then altered his opinion when he was given a full history at the time of his second report. He then said that it was the 1995 incident that caused the pre-existing osteoarthritis to become symptomatic. Mr Morgan submitted that there had not been an adequate explanation given as to this inconsistency.
Mr Morgan referred to the operation report of Dr Turnbull, and Dr Turnbull’s opinion that the chondral damage would progress over the years as it involved weight bearing surfaces and, significantly, that it might cause premature arthritis in the knee. It followed, he argued, that there must have been no arthritis seen by Dr Turnbull, because Dr Turnbull warned of premature arthritis being a possible future event.
Mr Morgan submitted that Mr Atkins was a big man and an active man. He was a participant in a number of sports and of course he had the physical aspect of his policing work until he was put on light duties.

DISCUSSION

The central issue in this case relates to the period between 2002 and 2019, when Mr Atkins had no recorded treatment for his left knee condition. The respondent has denied liability on the basis that although the 1995 injury had been accepted, there was no causal link between it and his current condition, particularly when he had been certified fully fit on 11 August 2003. It also relied on the opinion of Dr Anthony Smith, that Mr Atkins’ osteoarthritic condition was constitutional, and that any aggravation of that condition would have been short lived.
In essence, the respondent denied liability on the basis that no work-related injury had occurred. It relied on Dr Smith’s opinion that Mr Atkins’ employment was not the main contributing factor to his condition.
As has been seen, there is ample support for Mr Atkins’ earlier left knee injury in 1995.
Dr Turnbull performed an arthroscopic chondroplasty on 1 August 1996, and Dr Young performed a further arthroscopic examination under anaesthesia on 12 November 2001.
Dr Turnbull noted chondral fissuring over the medial femoral condyle, which he debrided.
Dr Young noted, over five years later, that Mr Atkins then had grade III change on the undersurface of the patella, with some generalised thinning of the trochlea. As to the earlier chondroplasty by Dr Turnbull, Dr Young saw an area on the medial femoral condyle where he suspected a chondroplasty had been performed some years earlier. He noted an extensive area of fibrocartilage in reasonable condition.
The surgical treatment was concerned with the condition of chondral damage. Whilst
Ms Goodman submitted that chondral fissuring was in fact arthritis, her submission was unaided by evidence. There appears to be a distinction between chondral damage and arthritis, as Dr Turnbull was careful to differentiate when he said that the chondral damage may cause premature arthritis. If the respondent wished to submit that chondral fissuring and arthritis were the same, it needed medical evidence to establish its proposition.

Arthritis was identified in the x-ray of 19 September 2019. The report was quoted by
Dr Bodel and it commented that:[26]
“This is a preoperative x-ray of the left knee showing severe tricompartmental osteoarthritis particularly in the medial compartment of the knee with the varus angulation that I have described.”
[26] ARD page 39.
Dr Burneikis also referred to an MRI scan taken two weeks before his report of 19 September 2019, which he said:[27]
“MRI Scan shows severe osteoarthritic change in the medial compartment with bone on bone arthritis and bone oedema on both the femoral and tibial side. There is a medial meniscal tear and extrusion. There are lesser changes in the other compartments.”
[27] ARD page 26.
This evidence tends to support that Mr Atkins suffered a left knee injury on 28 September 1995, but does not establish the presence at that time of arthritis. I accept Dr Turnbull’s view that the chondral damage he identified in the arthroscopic procedure would progress and that it could cause premature arthritis. This opinion was confirmed when Dr Young found
grade III wear on the underside of the patella. Whilst Dr Young did not identify the change as arthritis, I accept Dr Bodel’s opinion that the finding of a grade III change established the onset of arthritis.
The evidence demonstrated that the arthroscopic treatment by Dr Young was of considerable assistance, so that Mr Atkins was cleared to return to normal duties on 5 August 2003, when Dr Young also noted that Mr Atkins had been playing squash for 12 months and experienced no pain in his knee.
Thus I am satisfied that the contemporaneous evidence of Dr Turnbull and Dr Young corroborate Mr Atkins’ evidence that he had a problem with his left knee between 1995 and 2003, but that he recovered sufficiently to return to a normal life – including playing the game of squash. He did, however, have a prospective diagnosis from 1996 that his injury might cause premature arthritis.
That he now suffers from arthritis is beyond doubt, and it is not without relevance that
[28] ARD page 90.
Mr Atkins had a right total knee replacement on 22 July 2015 after radiographs showed that the knee was “grossly arthritic,”[28] following his fall whilst arresting an offender in 2007. This too caused post traumatic arthritis in the right knee, which led to the replacement surgery, the cost of which was met by the respondent.
The observations made by Ms Goodman about the manner in which the statement was taken has some force. In many ways it resembled a statement of particulars, which had been carefully compiled by reference to their source. As indicated, the details were clearly obtained by reference to the clinical notes, but the notes themselves have, with the exception of those of Dr Shah, not been lodged. I assume that this failure was through inadvertence. Nonetheless, whilst such an omission has the potential to derail a case, I am satisfied that
I may rely on the particulars within Mr Atkins’ statement, as they are so detailed that it is highly improbable that they are not based on the actual records.
I agree with Ms Goodman that a statement made many years after the events recalled, might not be reliable. There is always the danger, particularly if its maker has a vested interest in the outcome, that he/she might quite innocently have reconstructed his/her evidence.
However, Mr Atkins has a measure of support from the clinical notes of Dr Pravesh Shah of 29 August 2019. Dr Shah was the first medical practitioner Mr Atkins complained to about his left knee since he was cleared for full duties by Dr Young in 2003. Dr Shah’s note recorded a history that the left knee had become “more painful over the years.”
Further, Mr Atkins’ evidence is that he self-managed his injury by doing home exercises on his quad and hamstring and taking analgesic medication. These are allegations of fact which could not be the subject of innocent reconstruction years later. After the injury of 23 March 2007 treatment was focussed on his right shoulder and knee and I find it quite likely that
Mr Atkins would have favoured the left knee following the total right knee replacement in 2015.
Of relevance also, is that Mr Atkins was also struggling with the slow deterioration of his right knee after 23 March 2007. He had an arthroscopy of the right knee on 14 September 2009, and a total knee replacement on 22 July 2015, after the condition of his right knee had deteriorated so that he could not run, or climb stairs. Dr Bodel described the condition of both knees as being caused by post-traumatic osteoarthritis and the similarity in both cases is quite striking. Mr Atkins has held out as long as he could in both instances, and it is remarkable that the respondent chose to meet the cost of the right total knee replacement but not the left. It is quite plausible that Mr Atkins’ focus was on the right knee and shoulder during that time.
Be that as it may, I do not accept that Mr Atkins’ evidence has been compromised by the fact that his statement was made some years after the period he was describing. I accept that the danger described by Ms Goodman needs to be acknowledged, but I do not think it deprives Mr Atkins’ testimony of any plausibility or weight. Mr Atkins has been a serving police officer since 1988, when he was 23 years old, and he appears to have a positive attitude to his career, and to his fitness, as he was an active squash player in 2003 according to Dr Young. His record appears to be exemplary, and I have no reason to disbelieve his evidence, or to suspect that he was deliberately seeking to mislead the Commission.
The expert evidence from the applicant’s specialists supported the proposition that the cause of Mr Atkins’ knee condition was the onset of post-traumatic arthritis over a number of years. Dr Burneikis advised that it most likely related back to the 2007 injury, which resulted in a submission from the respondent that his opinion was based on an incorrect history, as there was no injury to the left knee occasioned in that event. Further, Dr Burneikis did not have the history of the left knee injury on 28 September 1995, nor the subsequent treatment of that injury prior to 2007.
Dr Bodel was also of the same opinion and had taken a correct history of the 1995 injury, and Mr Atkins’ continuing problems. However, Dr Bodel’s opinion was also challenged by the respondent, as he did not take a correct history of the dates of the arthroscopies.
Dr Bodel referred to the 2001 arthroscopy, which he said showed early arthritic change and a tear of the medial meniscus. He thought a “second” arthroscopy had been performed, so it followed that he was not aware of the results of the earlier arthroscopy of 1 August 1996.
The arthroscopy of 1 August 1996 conducted by Dr Turnbull found in fact that the medial meniscus was intact, so Dr Bodel was referring to the second arthroscopy by Dr Young of 21 November 2001 which found grade III change on the undersurface of the patella and a medial meniscus tear. Dr Bodel described that finding as the development of post-traumatic osteoarthritis.
I do not accept the respondent’s claim that because of these inaccuracies in the history, that both opinions are of no weight. Dr Burneikis observed that he did not have all the details regarding the 2007 injury, and there was nothing in his opinion that excluded the earlier injury of 1995 as being the catalyst for the subsequent development. Dr Bodel’s opinion that the arthroscopy of 2001 showed early degenerative change was consistent with the prediction made by Dr Turnbull – even though Dr Bodel was unaware of Dr Turnbull’s opinion.
I was not assisted by Dr Anthony Smith’s reports. His opinion in his first report of
26 November 2019 was that osteoarthritis is a familial inherited condition but that it was aggravated in the 2007 injury to Mr Atkins’ right knee and shoulder. He thought the condition in the left knee pre-dated that event. Dr Smith advised that any aggravation would have lasted no longer than two or three weeks, and employment would only be a substantial contributing factor to those aggravations whilst they lasted. Otherwise, employment was not the main contributing factor to the condition itself.
In his second report Dr Smith, on being made aware of the 1995 injury to the left knee, advised that this injury rendered Mr Atkins’ osteoarthritic left knee symptomatic, and that it did not make the condition any worse than it was going to get anyway.

I reject Dr Smith’s opinion. Dr Smith acknowledged that he had seen Dr Turnbull’s operation report and indeed repeated part of Dr Turnbull’s findings. However, he did not repeat or comment on Dr Turnbull’s advice that the chondral damage would progress with time and might cause premature osteoarthritis. Dr Smith did not consider that comment, and its implication that Dr Turnbull on 1 August 1996, did not find any osteoarthritis.

As I have indicated, I am satisfied that Dr Turnbull’s comment may be relied on, and accordingly Dr Smith’s assumption is unsupported, as no osteoarthritis was found by
Dr Turnbull.

I also reject Dr Smith’s opinion that any aggravation would only last a week or two. Mr Atkins had continual difficulty with his left knee, as was shown by his statement, until the second arthroscopy by Dr Young successfully got him back to full duties and his sporting pursuits.
I have accepted Mr Atkins’ evidence that his left knee never completely recovered but that he was anxious to return to full duties, and coped with his ongoing pain by self-administered treatment. I am satisfied that this form of management failed to prove effective after his injury in 2007, and that he favoured his left leg as his right knee (and shoulder) were treated. I think it is quite likely that the 2015 total right knee replacement accentuated his reliance on his left leg. He still managed to perform his duties until he knocked his knee in December 2018, the resulting level of pain sending him eventually to Dr Burneikis. I am satisfied that the injury of 28 September 1995 caused the onset of premature arthritis, which due to Mr Atkins’ determination to stay on full duties, was aggravated by the nature and conditions that policing activities required. Incidentally, I noted that Mr Atkins gave the wrong date for the December 2018 event, saying it occurred on 15 August 2020. Nothing turns on the error, as the correct date was recorded in the medical reports, as I have noted.

I accept the opinions of both Dr Bodel and Dr Burneikis that Mr Atkins’ left knee symptoms were of long standing, and I accept Dr Bodel’s opinion that the cause of Mr Atkins’ symptoms had been the injury of 28 September 1995. There is no evidence, apart from Dr Smith’s conjecture, that Mr Atkins was then suffering from osteoarthritis, and I accept Dr Turnbull’s contemporary opinion in preference.
In any event, Mr Atkins has pleaded his case in the alternative that his condition was contracted by his injury in 1995 and that the nature and conditions of his employment aggravated that condition. I find Dr Bodel’s opinion to be supported by Dr Turnbull (notwithstanding that Dr Bodel did not see Dr Turnbull’s opinion) that the chondral damage seen on arthroscopy may cause premature osteoarthritis, which I am persuaded it did.
It follows that the event of 1995 was a material contributing factor to the onset of Mr Atkins’ present condition. It has not been argued that the proposed left total knee replacement was not reasonably necessary from a medical standpoint, and I accordingly find in favour of the applicant.

SUMMARY

The applicant suffered an injury on 28 September 1995, thereby causing chondral damage that subsequently led to the onset of an osteoarthritic condition in his left knee. Thereafter the nature and conditions of the applicant’s employment as a police officer aggravated that condition until he sought further medical treatment in the form of a left total knee replacement.
The recommendation for a total knee replacement is reasonably necessary treatment.
The respondent will accordingly pay for the costs of and associated with the total left knee replacement surgery proposed by Dr Burneikis on 19 September 2019.

[2021] NSWPIC 398

6 October 2021