Baldock v 3W Catering Pty Ltd
[2021] NSWPIC 525
•16 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Baldock v 3W Catering Pty Ltd [2021] NSWPIC 525 |
| APPLICANT: | Jessica Baldock |
| RESPONDENT: | 3W Catering Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 16 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for proposed hip surgery for alleged consequential condition; whether applicant suffered consequential right hip condition as a result of altered gait following accepted knee injury; whether proposed surgery reasonably necessary; Held - on a common-sense examination of the causal change, taking into account the lay and medical evidence, the applicant suffered a consequential condition to her right hip as a result of the accepted injury; Kooragang Cement Pty Ltd v Bates, Kumar v Royal Comfort Bedding Pty Ltd and Moon v Conmah Pty Ltd followed; the proposed surgery is reasonably necessary; Diab v NRMA Ltd referred to; the respondent is to pay the costs of and incidental to the proposed surgery. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to her right knee in the course of her employment with the respondent on 28 August 2018. 2. As a consequence of the injury referred to in paragraph 1 above, the applicant suffered a consequential condition to her right hip. 3. The surgery proposed by Dr Randhawa in his request dated 18 May 2021 is reasonably necessary. 4. The respondent is to pay the costs of and incidental to the proposed surgery. |
STATEMENT OF REASONS
BACKGROUND
On 28 August 2018, Jessica Baldock (the applicant) suffered an injury to her right knee when she tripped and fell on a rubber mat, landing heavily on a tiled floor.
The applicant also developed a consequential condition in her left knee, which is not disputed and for which medical treatment has been paid for by the respondent.
The applicant alleges that she also suffered a consequential condition to her right hip as a result of the altered gait pattern which she developed because of her injury.
3W Catering Pty Limited (the respondent) denies the applicant’s right hip condition is consequential to her injury and also alleges the proposed surgery to it which is the subject of these proceedings is not reasonably necessary.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a consequential condition to the right hip, and
(b) whether the proposed surgery is reasonably necessary as a result of that consequential condition.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 10 December 2021. On that occasion I used my best endeavours to facilitate a resolution of the proceedings, however, the parties were unable to resolve their differences and the matter proceeded to arbitration.
At the hearing, Mr G Barter of counsel instructed by Ms L Hunt, solicitor appeared for the applicant and Ms L Goodman of counsel instructed by Ms K Farrar, solicitor appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Consequential condition to the right hip
10.The applicant bears the onus of proving that her right hip condition is consequential to her accepted injury. It is important that at the outset to establish the relevant test for determining the presence of a consequential condition.
11.In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche, dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At paragraph 35 and following, the Deputy President stated:
“By asking if Mr Kumar has suffered a Section 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a Section 4 injury to his right shoulder.”
12.When determining questions of causation in relation to consequential conditions, the Commission must engage in a common-sense evaluation of the causal chain and examine all the lay and expert evidence, as was made clear by his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). His Honour said:
“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 death or injury, will not, of itself, be
sufficient to establish that such incapacity or death ‘results from’ a work injury. What
is required is a common-sense 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.”
13.At [55] the decision in Kumar, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”
14.Another example of the difference between an injury pursuant to section 4 and a consequential condition was found in the decision of Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon). In that case, there was an accepted injury to the right shoulder which allegedly gave rise to a consequential condition in the left. Roche DP again set out what was required to establish a consequential condition when he said:
“44.The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from him employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder. 45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in Section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder had resulted from his right shoulder injury.”
15.In this matter, I am on the balance of probabilities satisfied that the change in the applicant’s gait brought about by her accepted injury has caused the consequential condition in her right hip.
16.Treating surgeon Dr Randhawa provided a report which touched on the question of causation dated 18 May 2021. He set out the relevant history as follows:
“Thanks for asking me to see Jessica regarding her right hip pain. She is a previously healthy 31-year-old lady who suffered an injury at work in August 2018. Jessica was employed a part-time work at Cove at the Bistro when she fell over some rubber matting and then landed heavily on the tiles. At that time her main injury and complaint was right knee pain and to a lesser extent left knee pain. Due to the prolonged nature and debilitation from her knee injuries, she has been placing increased load on the right hip with altered gait favouring both hips to try and offload the knees. The last 12 months her right hip has been painful and has become more prominent in the last four months as her knees have recovered. She is also experiencing pain to the left hip, but to a lesser extent.
As regards to the right hip, Jessica complains of pain to the anterior aspect as well as the groin. The pain is worse on prolonged standing. Sitting is also painful for her as it aggravates her anterior hip tightness.
On examination Jessica has now an antalgic gait to the right hip. Her hip is very irritable with a positive FADIR test. There are no neurovascular symptoms to the right or left leg.
I reviewed Jessica’s x-rays and MRI scans of the right hip. These show an anterolateral tear and also a partial tear to the ligamentum teres. This is consistent with Jessica’s work injury back in 2018 and also due to the altered gait placing increased load through her hips.”
17.For the applicant, Mr Barter submitted that it did not matter whether the labral tear shown on the MRI scans had developed at the time of the applicant’s initial injury or whether it had come on as a result of her altered gait as a consequential condition. Either way, Mr Barter submitted there was a clear causal link between the original injury and the symptoms which necessitate surgery. Whilst this may be so, it is noteworthy that it is symptomology which necessitates any form of treatment, not the pathology underlying those symptoms per se.
18.Ms Goodman for the respondent noted the applicant’s IME Dr Dixon did not deal specifically with the question of when the applicant developed hip pain, and she submitted in the context of a consequential condition claim this was a matter of importance. She noted Dr Dixon in his report indicated only that it was possible there was a consequential condition of the left knee as a result of the right knee injury.
19.I note, however, that the respondent has accepted liability for the left knee consequential condition, so to that extent that observation is not relevant to the matters at hand.
Ms Goodman criticised Dr Dixon because he did not say how or why the applicant’s labral tear is related to the fall in 2018. She noted there were no clinical notes produced and no GP records as to when the applicant started to complain of right hip problems.20.Ms Goodman submitted that the records demonstrate the applicant only began complaining of her right hip problems in or about April 2021 when she had the right hip MRI, and that were those complaints consistent with a consequential condition, one would expect them to have arisen long before some nearly three years after the index injury.
21.That submission, however, fails to take into account the applicant’s own uncontroverted evidence contained in her statement at [48] of the following where she says:
“As I have been favouring my left leg when walking, in order to avoid further injury or pain to my right knee, I had felt the pain in my left knee gradually worsening. As a result of my altered gait, I had also developed some pain in my hips, however the pain in my knees was worse and was the main focus of my treatment. Dr. Tang advised that I needed to have scans taken to investigate the pathology in my right knee.” The applicant’s uncontested evidence, supported by the contemporaneous medical records is that the scan on the left knee to which she refers in the above paragraph was taken on 13 May 2020. It follows that the applicant’s evidence is she had been experiencing hip pain from at least May 2020.”
22.Later in her statement, the applicant noted she underwent arthroscopic surgery to her left knee on 30 June 2020, paid for by the respondent’s insurer. She then noted at [60] that in January 2021 she had arthroscopy of her right knee with ITB release, following which she noticed “worsening” pain in her right hip and was extremely uncomfortable. She therefore consulted with surgeon Dr Balalla on 1 February 2021 complaining of feeling extremely sore following surgery, which was making it difficult for her to walk up and down stairs. She said, “I had been suffering from right hip pain as I have been walking with an altered gait since my workplace injury occurred, however, it was after this surgery that my right hip pain became unbearable”.
23.I accept the applicant as a witness of truth, as her evidence is not contradicted concerning the onset and severity of her symptoms. It is therefore apparent that she had been suffering from hip symptoms for at least a year before she underwent the MRI on 26 April 2021.
I therefor reject the respondent’s submission for the applicant only commenced complaining of pain in her right hip in or about April 2021.24.The respondent relied upon the report of Dr Edwards, IME. In his report dated 16 June 2021, he set out the findings in relation to the history of right hip problems. After setting out the history and his findings on examination, Dr Edwards said:
“I do not consider she has sustained any injury to her hip as a result of the injury to her left knee.
I suggest a hip surgeon be asked to answer this question [is the requested hip surgery reasonably necessary treatment?]. Ms Baldock is young, and this will appear to represent fairly aggressive treatment.” Mr Barter noted that in fact the opinion of a hip surgeon had been obtained, namely that of treating surgeon Dr Randhawa.”
25.On balance, the medical evidence in my view supports the finding of a causal link between the accepted knee injury and the consequential condition to the right hip. In particular, regard must be had to the opinion of treating surgeon Dr Randhawa, whose views as a doctor who has the benefit of treating the applicant over an extended period are accepted at face value and are given significant weight.
26.I also note that to the extent Dr Edwards referred to the applicant allegedly suffering a right hip “injury”, the doctor has referred to the wrong test. Having said that, it is apparent from the doctor’s report that he has otherwise addressed the correct issue, namely whether the right hip condition has developed as a consequence of the right knee injury.
27.As Mr Barter pointed out, there is substantively no medical evidence to contradict the views of Dr Randhawa or of Dr Dixon. Dr Edwards’ report, as Ms Goodman quite appropriately conceded, does not really explain how he reaches the view that the applicant’s hip condition does not relate to the knee injuries.
28.As Ms Goodman pointed out, the onus is nevertheless on the applicant to prove that the condition is related to the accepted injury. I accept that submission, however, I find on balance that the preponderance of the medical evidence supports a finding that the right hip injury is causally connected to the right knee injury owing to the altered gait which the applicant exhibited over time following the accepted injury.
Reasonable necessity of treatment
29.The respondent says the proposed surgery is not reasonably necessary. That contention is supported only by Dr Edwards, who describes the proposed surgery as “fairly aggressive treatment”. Dr Edwards’ attack on the reasonable necessity of the surgery appears to be based on the issue of causation rather than whether the surgery is necessary.
30.To the extent Dr Edwards doubts the reasonable necessity of the treatment, I note he has provided no reason as to why this would be so. Rather, he simply provides a bare ipse dixit statement to the effect that it is not reasonably necessary.
31.On balance, I prefer the views of the treating surgeon Dr Randhawa and noting the matters to be taken into consideration as set out in the decision of Diab v NRMA Ltd [24] NSWWCCPD 72, find that the view the proposed surgery is reasonably necessary. It is noteworthy that the proposed treatment does not need to be the only appropriate treatment regime, nor does it need to be strictly necessary. Rather, the word “reasonably” operates as a qualification to the requirement of necessity. On balance, the totality of the evidence comfortably satisfies me that the proposed surgery is a form of treatment which the applicant should have rather than it be forborne (see Rose v Health Commission (NSW) [1986] 2 NSWCCR 2).
32.I also note that the medical records reveal the applicant is allergic to steroidal injections, which necessarily means an avenue of conservative treatment, which might otherwise have been available to her treating doctors is not suitable for her.
33.On balance, the medical evidence in this matter is overwhelming. The proposed surgery is reasonably necessary as a result of a consequential condition arising from the accepted knee injury, and accordingly, the Commission will make findings and orders as set out on page 1 of the Certificate of Determination.
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