Barnes v Alicia Pullen Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Barnes v Alicia Pullen Pty Ltd [2025] NSWPIC 384
APPLICANT:	Shane Barnes
RESPONDENT:	Alicia Pullen Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	7 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical and treatment expenses; reasonably necessary; consequential condition; section 60; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty Limited, Watson’s Culcairn Hotel Pty Ltd v Dwyer, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, Rose v Health Commission (NSW), Murphy v Allity Management Services Pty Ltd, and Diab v NRMA Limited cited and applied; Held – the applicant has suffered a consequential left knee condition as a result of the accepted right knee injury; the bilateral total knee replacement surgery recommended is reasonably necessary due to the accepted work injury to the right knee and consequential left knee condition; pursuant to section 60 the respondent is to pay the costs of and associated with the bilateral total knee replacement surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The Application to Resolve a Dispute is amended to limit the claim pursuant to s 60 of the Workers Compensation Act1987 to the costs of and associated with total bilateral knee replacement surgery. 2. That the applicant has suffered a consequential left knee condition as a result of the accepted right knee injury. 3. That the bilateral total knee replacement surgery recommended by Dr Randhawa is reasonably necessary due to the accepted work injury to the right knee and consequential left knee condition. 4. The respondent is pursuant to s 60 of the Workers Compensation Act 1987 to pay the costs of and associated with the bilateral total knee replacement surgery recommended by Dr Randhawa. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Shane Barnes (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which he pleads that he sustained injury to his right knee on
17 September 2018 whilst unloading items from a truck whilst in the course of his employment with Alicia Pullen Pty Ltd (respondent). The applicant pleads that he sustained the injury as he pulled a box towards him and turned, at which time his right knee twisted and gave way beneath him causing him to fall. The applicant also alleges that he sustained a consequential left knee condition as a result of favouring the injured right knee.
Injury to the right knee is not disputed. The alleged consequential left knee condition is disputed by the respondent.
The applicant seeks pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) the payment of the costs of bilateral knee replacement surgery recommended by Dr Sunny Randhawa.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) consequential condition of the left knee, and
(b) whether the proposed bilateral knee replacements are reasonably necessary as a result of the pleaded injury: s 60 of the 1987 Act.
At the time of the arbitration hearing the applicant discontinued the claim for past treatment expenses and the claim for medical and treatment expenses under s 60 of the 1987 Act was limited to future treatment in the form of total bilateral knee replacements.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
9 July 2025. Mr Misha Hammond, counsel, instructed by Santone Lawyers, appeared for the applicant, who was present. Mr Ty Hickey, counsel, instructed by Lee Legal Group, appeared for the respondent. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
The following is a brief summary of the evidence in this matter.

Applicant’s statement evidence

It is the applicant’s evidence that he commenced employment as a truck driver with the respondent in or around 2017 working on a full-time basis with regular overtime.
It is the applicant’s evidence that he sustained a left knee injury in a motor vehicle accident in or around 1993 as a result of which he underwent left knee surgery at the hands of
Dr Raymond Wallace.
It is the applicant’s evidence that in around 2009, he slipped and fell in the rain again injuring his left knee. A left knee arthroscopy was subsequently performed by Dr Wallace in around 2010 following which the applicant was referred to Dr James Sullivan for further opinion and treatment of his left knee.
It is the applicant’s evidence that a third left knee arthroscopic surgery was performed in around 2010 by Dr Sullivan.
It is the applicant’s evidence that he was fit to return to work on light duties in around December 2012 and that from 2015 to 2018 he had “fully recovered” from his previous left knee injury and was not experiencing any pain and was able to do all activities prior to the subject work injury.
It is the applicant’s evidence that on or around 17 September 2018 he was unloading items off the middle of the tray of the truck. He was standing at the back of the truck on the railing step and was trying to reach out for a couple of boxes to unload them. He grabbed a box and put his weight on one side of his body to turn and bring the boxes closer to him. As he did so he went back a step, put his leg down, turned and twisted his right knee which gave way underneath him causing him to fall heavily onto his bottom suffering a jarring injury to his back.
It is the applicant’s evidence that he recalls that the box that he was holding at the time weighed about 30kg. It is the applicant’s evidence that he did not hit his knee when he fell, however he “felt an internal crack” in his right knee and then a burning sensation.
It is the applicant’s evidence that the following day his right knee was painful with some swelling of his right leg. That he went to see his general practitioner (GP), Dr Eric Ruhl, and had some scans.
It is the applicant's evidence that he took two weeks off on annual and/or sick leave due to the pain in his right knee before returning to work on normal duties and hours. His employment with the respondent was then terminated in around February 2019 and he had not returned to any form of work since.
It is the applicant's evidence that Dr Sullivan performed an arthroscopy of the right knee with partial medial meniscectomy on 13 February 2019. That he continued to experience pain during the arthroscopic surgery healing process and was walking with a limp due to the pain and that around this time he predominantly used his left leg.
It is the applicant’s evidence that when he was doing any sort of movements and physical activities, he would transfer his body weight to his left side as he felt severe pain in his right knee which was also unstable. That he walked with a limp putting more weight on his left leg and slid his right foot across as he couldn’t pick it up. That when he went up and down stairs, he had to take individual steps and go up or down using his left leg. That when sitting down or getting up from a chair, the twisting and turning motions and the pressure on his right knee caused shooting pains, which led him to rely on his left leg to rise from a chair.

Treating medical evidence

Erskine Park Family Clinic clinical notes

The clinical notes of the Erskine Park Family Clinic are in evidence. The applicant has been a long-term patient of the practice with the notes commencing in June 2004. The clinical notes of the applicant’s attendances contain repeated references to the applicant’s knees between April 2010 and February 2015.
The notes are extensive but in particular the notes record on 13 April 2010 that the applicant had sustained a left meniscal tear at work and was awaiting surgery;[1] on 26 May 2010 that the applicant had left knee arthroscopy on 27 March 2010;[2] on 31 May 2010 left knee pain and swelling;[3] on 29 June 2010 sharp left knee pain;[4] on 13 July 2010 that the left knee was no better, swollen, painful, locking and unable to fully extend knee due to pain;[5] on
6 September 2010 left knee pain improved but still restricted range of movement, getting burning medial knee pain, had cartilage removed from knee and complaining of bone on bone pain;[6] on 30 September 2010 left knee pain/swelling, range of motion improving, episode of giving way three weeks ago, been told by rehab would be better to get re-training to do different job to prevent relapse planning to do limousine driving;[7] on 18 October 2010 left knee gradually better;[8] on 29 October 2010 fell over again two days prior when knee gave way, knee had been collapsing;[9] on 5 November 2010 left knee pain no better, still feels unstable, feels bone on bone;[10] on 21 January 2011 ongoing knee pains, getting locking and giving way of the knee, complained of grinding sensation under knee cap;[11] on 10 March 2011 seen by lawyers orthopaedic surgeon who stated no need for surgery at present but may need total knee replacement;[12] on 28 April 2011 left sided knee locking and pain;[13] on 24 June 2011 left knee pain unchanged, seen by Dr Sullivan who stated that applicant could have knee transplant in a few years (still being perfected) or total knee replacement in
five years;[14] 23 August 2011 knee dislocated on 19 August when stood up to walk;[15] on
16 September 2011 episode of giving way last night and seven days prior, feels unstable and getting grinding bone on bone sensation in knee;[16] on 4 October 2011 left knee gave way walking 50m and constant grinding and clunking of knee;[17] on 8 November 2011 seen by
Dr Sullivan who stated that can operate now or wait until fully torn;[18] on 7 February 2012 seen by Dr Sullivan previous day - will write a letter as never able to go back to driving his truck again, waiting for knee surgery next year;[19] on 8 March 2012 ongoing knee instability daily;[20] on 4 May 2012 left knee locked and gave way one week prior;[21] on 12 May 2012 episodes two days before of knee pain and next days in bed all day;[22] on 20 September 2012 left knee pain ongoing, if standing for few seconds to longer then can have an episode of severe pain;[23] on 1 March 2013 knee pain unchanged, still unstable walking and standing unchanged still restricted;[24] on 28 June 2013 knee pain aggravated two days prior twisting in kitchen and " knee popped out";[25] on 16 August 2013 six days ago was unable to wear knee brace and whilst walking knee gave way;[26] on 8 October 2013 getting some right knee pain, left knee pain ongoing problem, grimacing in surgery with pain when locked again;[27] on
3 December 2013 right knee now painful with walking, left knee remains painful and unstable;[28] on 10 January 2014 knee pain unchanged, still giving way three times per day;[29] on 24 January 2014 left knee gave way and fell forwards on 21 January, main problems are the right knee and ankle;[30] on 18 February 2014 left knee has been collapsing from time to time, walks with stick, feels more able to lift up to 5kg, driving automatic;[31] on 15 April 2014 right knee pain ongoing;[32] on 13 May 2014 left knee still giving way 20 times per week;[33] on
[1] ARD   p. 197.
[2] ARD   p. 198.
[3] ARD   p. 199.
[4] ARD   p. 199.
[5] ARD   p. 200.
[6] ARD   p. 201.
[7] ARD   p. 202.
[8] ARD   p. 203.
[9] ARD   p. 203.
[10] ARD p. 204.
[11] ARD p. 207.
[12] ARD p. 208.
[13] ARD p. 209.
[14] Ard   pp. 209-210.
[15] ARD p. 211.
[16] ARD p. 212.
[17][17] ARD p. 212.
[18] ARD p. 213.
[19] Ard   p. 216.
[20] ARD pp. 216-217.
[21] ARD p. 218.
[22] ARD p. 219.
[23] ARD p. 224
[24] ARD p. 231.
[25] ARD p. 235.
[26] ARD p. 236.
[27] ARD p. 240.
[28] ARD p. 240.
[29] ARD p. 241.
[30] ARD p. 242.
[31] ARD pp. 243-244.
[32] ARD p. 245.
[33] ARD p. 246.
[34] ARD pp. 248-249.
[35] ARD p. 250.
[36] ARD p. 250.
[37] ARD p. 251.
[38] ARD p. 251.
9 September 2014 left knee pain ongoing and unchanged, applicant is aware may need total knee replacement in the future;[34] on 4 November 2014 left knee gave way and is aggravated yesterday whilst bending over to pick up branches after storm feels hot burning iron like pain inner knee;[35] on 11 November 2014 some aggravation with standing all day at a wedding, left knee effusion, tender medially unable to fully extend walks with limp;[36] on 5 January 2015 not worked for four years, would not be fit to do normal hours and days, left knee pain unchanged, mowed lawn yesterday and in pain today and can’t do anything, no significant change in knee condition, still unstable[37] and on 2 February 2015 - left knee gave way nine days ago.[38]
There is then a gap in the clinical records with the applicant next attending on the practice on 27 October 2015 for an unrelated condition. There is no mention of either knee in the clinical notes from 3 February 2015 until 4 December 2018.
On 5 December 2018 the applicant attends on Dr Sandy Lu who noted that the applicant had injured his right knee the previous afternoon at work when getting off the back of a truck when he put his right foot down onto the ground and his right knee gave way and he fell. The applicant reported that he has had occasional general soreness in his knees in the past but never given way and never stopped him from working. In respect to the left knee the doctor noted previous left knee medial meniscus tears with an initial injury in late teens when in a motor vehicle accident. The applicant reported to Dr Lu that his left knee is the 'bad knee' so he often favours the right with no previous issues with the right knee. Dr Lu noted that the applicant was walking with a limp and right knee was observed to be slightly swollen compared to the left.[39]
[39] ARD pp. 267-268.
On 10 December 2018 the applicant was reviewed by Dr Sandy Lu who noted ongoing right knee soreness, that the applicant was using a right knee brace and crutch.[40] The applicant attended on Dr Ruhl on 18 January 2019 who noted a history of a twisting injury to the right knee in September when getting up from sitting in the truck to get out and then in December went to get off the back of truck when knee gave way. The doctor noted that the left knee also felt unstable and gives ways and catches with movement. The applicant was noted to be awaiting arthroscopy.[41]
[40] ARD p. 268.
[41] ARD p. 269.
On 13 February 2019 Dr Sullivan performed a right knee arthroscopy with partial medial meniscectomy.[42]
[42] Ard p. 414.
On 26 February 2019 the applicant again attended on the Erskine Park Family Clinic. The clinical record of the attendance records that the applicant was “now” getting left knee.[43]
[43] ARD pp. 270-271.

Treating Clinical reports

On 19 August 2010 Dr Sullivan reported to Dr Wallace that the applicant had pain and catching in his left knee. Dr Sullivan observed that the knee was stable and that an MRI scan suggested pathology involving the medial meniscus.[44]
[44] ARD p. 391.
On 6 February 2012 Dr Sullivan reported to QBE Workers Compensation that the applicant did not require any further surgery.[45]
[45] ARD p. 401.
On 3 December 2012 Dr Sullivan reported to Dr Ruhl that the applicant reported that his knee was largely unchanged. The doctor observed that the applicant had mild varus of the left leg secondary to his meniscectomy and that he had significant ongoing symptoms.[46]
[46] ARD p. 402.
On 17 December 2012 Dr Sullivan reported to Dr Ruhl after reviewing X-rays of the left knee that he did not think that the applicant would benefit from any further surgery at that stage.[47]
[47] ARD p. 403.
Dr Sullivan reviewed the applicant on 24 April 2014 and reported to Dr Ruhl that the applicant reported ongoing pain in both knees and that the right knee generally played up more than the left. The doctor reported that “overall” the applicant had improved. Dr Sullivan observed that the applicant’s knees appeared “satisfactory” although the was having ongoing symptoms.[48]
[48] ARD p. 404.
After the subject work injury Dr Sullivan reported to Dr Lu on 13 December 2018 noting that he had seen the applicant for a number of years. Dr Sullivan recorded that over the “last few months” the applicant had aggravated his right knee. The doctor reported a history that the applicant had climbed over the back of a truck and twisted and when he got down, he felt his knee give way. The applicant had recurrent irritation of his right knee since then. Dr Sullivan also noted that the applicant still had some left knee symptoms which did not worry him to the extent his right knee did. Dr Sullivan observed the applicant’s gait to be antalgic on the right side.[49]
[49] ARD pp. 409.
On 31 January 2019 Dr Sullivan reported to Dr Lu that the right knee remained irritated. In the doctor’s opinion it was reasonable to proceed with an arthroscopy.[50]
[50] ARD p. 413.
On 13 February 2019 Dr Sullivan performed a right knee arthroscopy with partial medial meniscectomy.[51]
[51] ARD p. 414.
On 27 June 2019 Dr Sullivan reported to Dr Lu that the applicant still had some ongoing symptoms following the arthroscopy and meniscectomy.[52]
[52] ARD p. 418.
Dr Alister Ramachandran, pain specialist, reported to Dr Ruhl on 22 July 2021[53] reporting that the applicant’s problems included chronic left knee pain, traumatic arthritis (post arthroscopic reconstruction) and chronic right knee pain.
[53] ARD pp. 74-76.
Dr Ramachandran reported to Dr Ruhl on 27 July 2021[54] that the applicant reported persisting right knee pain following the work accident and associated functional decline with frequent episodes of knee weakness and falls. Over time the applicant had also noticed increased pain in his left knee.
[54] ARD pp. 77-80.
On 17 February 2022 Dr Sullivan reported to Dr Lu that the applicant had increasing right knee symptoms. The applicant was experiencing right knee pain, catching with certain activities and occasional swelling.[55]
[55] ARD p. 419.
Dr Sunny Randhawa, the applicant’s treating hip, knee and trauma surgeon, reported to
Dr Ramachandran on 3 May 2022. Dr Randhawa recorded a short history of the applicant suffering a right knee injury in a workplace accident in 2018 whilst working as a driver, that the applicant had an arthroscopic meniscectomy in 2019 for the knee injury following which he improved for a short period of time however his right knee pain had been deteriorating significantly since then.
Dr Randhawa reported that the applicant now had severe right knee pain which effects his basic activities of daily living as well as disturbing his sleep. The doctor noted that X-rays showed severe osteoarthritis which was expected after having a large meniscectomy in 2019. In the opinion of Dr Randhawa, the only possibility to improve the applicant’s activity levels and symptoms was a partial medial compartment knee replacement.[56]
[56] ARD p. 386.
On 18 May 2022 Dr Randhawa requested approval for right knee partial (medial) unicompartmental replacement.[57]
[57] ARD p. 385.
Dr Randhawa reported to Dr Ramachandran on 15 June 2022 that due to his altered gait and increased reliance on his left knee, the applicant had suffered an acute injury to the left knee which occurred whilst merely standing in the kitchen and turning his legs for a basic task.

Dr Randhawa observed that an MRI scan showed a tear of the medial meniscus. In the opinion of Dr Randhawa, the applicant needed arthroscopy and debridement of his medial meniscus.
Dr Randhawa on 16 June 2022 requested approval left knee arthroscopy.[58]
[58] ARD p. 381.
Dr Randhawa reported to Dr Ruhl on 20 February 2024[59] that a couple of weeks prior the applicant had suffered a repeat fall with an injury to his right knee. In the opinion of the doctor the recurrent falls had been occurring due to instability of both knees, which was due to degeneration and osteoarthritis of the knees.
[59] ARD p. 378.
Dr Randhawa noted that the applicant had undergone an updated MRI of his right knee which showed progression of chondromalacia to the medial compartment. Another new development was a tear to the anterior horn of the lateral meniscus. The doctor observed that the previous plan was for a partial right knee replacement and a total left knee replacement. However, due to the progression of the right knee pathology, the right knee was now only amenable to total knee replacement in the doctor’s opinion.
Dr Randhawa on 21 February 2024 requested approval bilateral total knee replacement
Dr Randhawa on 22 February 2024 requested approval right total knee replacement.
Dr Randhawa reported to Dr Ruhl on 15 January 2025.[60] Dr Randhawa observed that both knees had continued to deteriorate. The doctor noted that he had previously thought at his initial assessment in 2022 that the applicant may be a candidate for a right knee partial medial unicompartmental replacement. However, his right knee had deteriorated further, and he now needed total knee replacement surgery. The doctor observed that the applicant had relied heavily on his left leg and left knee during this period of debilitation, and his left knee was now causing him almost as much pain as the right.
[60] ARD p. 72.
In Dr Randhawa’s opinion the only option to improve the applicant’s pain and activity levels is to undertake bilateral knee replacement surgery. MRI scans of both knees show severe degeneration and the doctor felt that any surgery short of total knee replacement would not be successful.

On 5 February 2025 Dr Randhawa again requested approval for bilateral total knee replacements.[61]

Forensic medical reports

[61] ARD p. 434.

The applicant obtained a forensic report from Associate Professor (A/Prof) Nigel Hope, orthopaedic surgeon, dated 11 June 2024.[62] A/Prof Hope records that the applicant had undergone three left knee arthroscopies in 1993, 2009 and 2010 prior to the subject work incident. A/Prof Hope records that the applicant had made a full recovery and had full function for eight years after these surgeries. However, whilst symptom free he developed left knee osteoarthritis.
[62] ARD pp. 52-59.
In the opinion of A/Prof Hope the applicant developed left knee symptoms due to preferential overloading as a consequence of the injury to the right knee on 17 September 2018 which required a right knee arthroscopy. The left knee then gave way causing right and left knee pain.
The doctor observed that the applicant had severe bilateral knee pain, weakness and giving way causing a severe loss of function. Examination of both knees showed a “very painful walking pattern with tenderness and stiffness.”
A/Prof Hope diagnosed right knee osteoarthritis as direct result of the work injury on
17 September 2018 and left knee osteoarthritis with a consequential permanent aggravation of pre-existing osteoarthritis. In the opinion of A/Prof Hope the applicant requires bilateral knee arthroplasties due to the work-related injury. The doctor observed that nonoperative treatment had failed.
A/Prof Hope took a history that of the injury to the right knee at work on 17 September 2018. That in February 2019, a right knee arthroscopic partial medial meniscectomy was performed. That in mid-2019, the right knee gave way and a fall to the ground occurred. That the right knee symptoms continued and that the left knee symptoms started due to preferential overuse secondary to the painful work-related right knee condition. That in May 2022 Dr Randhawa injected the right knee and proposed a unicompartmental joint arthroplasty.
That in June 2022 Dr Randhawa initially proposed left knee total arthroplasty. That in October 2023, the left knee gave way and a fall occurred increasing the bilateral knee pain and in February 2024, Dr Randhawa proposed bilateral total knee arthroplasty.
The doctor observed that the applicant had significant continuing bilateral knee symptoms.

The applicant obtained a forensic report from Dr David Gorman, consultant physician, dated 19 August 2024.[63] Dr Gorman records that the applicant developed pain in his left knee due to overcompensating for his right knee injury following right knee surgery on
[63] ARD pp. 60-67.
13 February 2019. The doctor noted that due to the injury both knees weakened and would give way unexpectedly.
Dr Gorman noted that Dr Randhawa examined the applicant’s left knee on 15 June 2022 and commented that he had a medial meniscus tear and frayed ACL due to overcompensating for his right knee and that Dr Randhawa had subsequently recommended a full left knee replacement.
Dr Gorman noted that in or around 2019, the applicant slipped and fell in the shower when his right knee gave way unexpectedly. That on 3 May 2022, the applicant consulted the orthopaedic surgeon Dr Sunny Randhawa who recommended a partial right knee replacement. He administered a steroid injection to the right knee on 7 June 2022. That on 13 October 2023 the applicant suffered a fall when his left knee gave way whilst walking downstairs. He has also aggravated his right knee when he twisted it walking to the letterbox and on another occasions managing a toddler. He had also aggravated his left knee at home.
Dr Gorman noted that the applicant had a previous injury to his left knee in a motor vehicle accident in 1993 for which he underwent left knee surgery following the accident, performed by Dr Wallace. That in or around 2009, the applicant sustained a further injury to his left knee after slipping in the rain. That he underwent a left knee arthroscopy, performed by
Dr Wallace in 2010. Due to complications, a further left knee revision arthroscopy performed by Dr Sullivan in 2010. Dr Gorman records that by 2015, the left knee injury had fully resolved with no pain or impacts on daily living.
Dr Gorman observed that the applicant continues to have severe right knee pain, that the right knee gives way and that he gets flares of pain when the patellar moves laterally on occasions.
In the opinion of Dr Gorman, the applicant has ongoing right knee pain with aggravation and acceleration of osteoarthritis following the work injury which is continuing.
In the opinion of Dr Gorman, the abnormal gait resulting from the right knee injury caused consequential left knee pain. In the opinion of Dr Gorman, the antalgic gait must have caused increased force on the left knee which would contribute to the acceleration of the osteoarthritic process in the left knee.
Dr Gorman whilst conceding that he is not an orthopaedic surgeon was of the opinion that the applicant definitely has osteoarthritis and symptoms and would eventually need a knee replacement which the work injury has meant he now needed the right knee replacement as it accelerated the osteoarthritic process.
Dr Gorman provided a supplementary report to the applicant dated 24 March 2025[64] in which he stated that he believed that the left knee injury was an aggravation of pre-existing osteoarthritis accelerating the need for a left knee replacement.
[64] ARD p. 70.

On 24 December 2019 Dr Stephen Quain, orthopaedic surgeon, provided a forensic report to the respondent.[65] Dr Quain took a history of the event on 17 September 2018 and that the applicant had a further episode of sharp pain and on this occasion sought advice from his local doctor. Dr Quain also took a history of an event in early October 2019 when the applicant was attempting to pick up a young child and his right knee gave way.
[65] Reply pp. 1-5.
Dr Quain took a history of the applicant’s previous left knee problems and that the applicant stated that he was off work for about a year in around 2009 and that he had no problems between 2010 and 2018 except for a mild cold weather ache.
On examination the doctor noted that the applicant was limping and using a stick in his left hand.
Dr Quain did not believe, on the basis of his examination, that there was any ongoing instability of the right knee other than some wasting of the right quadriceps. In the opinion of Dr Quain an incident the applicant described in attempting to prevent a toddler from hitting a table edge or similar happened at home and as he did not accept that the right knee was unstable Dr Quain did not believe that it is a consequence of the original right knee injury.
Dr Quain was not briefed with the GP clinical records.
Dr Anthony Smith, orthopaedic surgeon, provided a forensic report to the respondent dated 30 August 2022.[66] In the opinion of Dr Smith the applicant has bilateral knee osteoarthritis. In the opinion of Dr Smith, the right knee meniscal tear treated by Dr Sullivan likely pre-dated the incident on 17 September 2018 and is part of the osteoarthritic process.
[66] Reply pp. 6-13.
Dr Smith observed that the applicant developed symptoms in his osteoarthritic left knee by turning and standing in his kitchen in or about June 2022. That in the doctor’s opinion could easily have caused an exacerbation, even a very severe exacerbation/aggravation to previously relatively asymptomatic knee osteoarthritis, which is present in the left knee, and would have been evident for a decade in a relatively asymptomatic state. In the opinion of
Dr Smith there is a good chance that the left knee medial meniscus injury was in fact not an injury, but a degenerate medial meniscus and part of the osteoarthritic process in the left knee.
In the opinion of Dr Smith, the applicant sustained an aggravation of his right knee osteoarthritis which was previously asymptomatic prior to the work incident of 17 September 2018. In the doctor’s opinion that would have likely settled of its own accord and left no disability. He temporarily aggravated his right knee osteoarthritis trying to prevent a toddler from falling over.
In the opinion of Dr Smith in the applicant’s age group realignment osteotomy and/or full knee replacement or in part are treatments for arthritis.
Dr Smith provided the respondent with a further a forensic report dated 18 September 2023.[67] Dr Smith confirmed his opinion that the applicant has bilateral osteoarthritis of the knees. The doctor observed that there had not been any improvement in the right knee since his previous examination. The doctor noted that the applicant has a deterioration with a reduction in range of motion of the right knee. The left knee had also deteriorated but not to the same extent. The doctor observed that the applicant has bilateral patella Alta and laterally displaced tibial tubercles which predisposed him to knee osteoarthritis. These are structural anatomical variations.
[67] Reply pp.14-22.
The doctor observed that the left knee was now possibly slightly worse than the right knee.
In the opinion of Dr Smith any total knee replacement would be treating the constitutional osteoarthritis condition and not any work aggravation.
Dr Mohammed Assem, rehabilitation specialist, provided a forensic report to the respondent dated 8 November 2023.[68] The doctor records that the applicant reported no prior incidents or discomfort in respect to the right knee before the work accident. The doctor observed that the manner in which the right knee gave way on 17 September 2018 suggests a potential ligamentous or meniscal injury, despite the absence of rotational component typically associated with such knee injuries.
[68] Reply pp. 23-30.
Having reviewed the circumstances surrounding the incident on 17 September 2018 the doctor was of the opinion that the applicant sustained a new injury to his right knee. The mechanism in the doctor’s opinion was consistent with an acute traumatic event rather than a mere exacerbation of any pre-existing degenerative changes within the right knee. Whilst it is likely that the applicant had underlying degenerative changes, the clinical presentation following the incident suggests an injury that is distinct and separate from the pre-existing condition.
In respect to the left knee the doctor observed that the applicant has a documented history of pre-existing conditions that have led to advanced degenerative changes, which are more pronounced than one would typically expect for his age group. The possibility that the compensatory gait, subsequent to the right knee injury, may have exacerbated the left knee condition cannot be dismissed. However the applicant reported a sedentary lifestyle post injury, it is unlikely that the left knee has been subjected to substantial stress that would significantly contribute to the progression of his pre-existing knee pathology. His lack of physical exertion and limited mobility since the incident suggests that any exacerbation of his left knee condition is more likely to be minimal. In the doctor’s opinion work was not a substantial contributing factor.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Consequential condition – left knee

To establish a consequential condition of the left knee the applicant is not required to prove an injury within the meaning of s 4 of the 1987 Act.[69] All that is required is that the condition has resulted from the accepted s 4 injury.[70]
[69] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan); Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[70] Watson’s Culcairn Hotel Pty Ltd v Dwyer [2016] NSWWCCPD 5 (Dwyer).
The question whether a consequential condition has been sustained is a question of fact.[71] Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[72]
[71] State of New South Wales v Bishop [2014] NSWCA 354 (Bishop).
[72] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The applicant bears the onus of establishing on the balance of probabilities that he has developed a consequential condition as a result of the accepted injury to his right knee. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact.[73]
[73] Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336 (Briginshaw).
There is no dispute that the applicant has a history of significant prior left knee complaints. Whilst the applicant’s left knee problems extend back to 1993 the clinical notes of the Erskine Park Family Clinic between April 2010 and February 2015 in particular attest to the significance and debilitating nature of the condition.
It is the applicant’s evidence that he was fit to return to light duties work in around December 2012. Whilst the clinical notes of the Erskine Park Family Clinic from December 2012 record that return to work options were discussed, such as driving instructor and limousine driver, and attempts to return the applicant to work perused the said notes also indicate in my view that the applicant’s left knee remained highly symptomatic with significant functional restrictions between December 2012 and February 2015 and the attempts to return the applicant to work were not successful.
In respect to the more significant entries during the said period the clinical notes of the Erskine Park Family Clinic record on 18 December 2012 ongoing knee instability, giving way and locking, on 4 February 2013 ongoing left knee pain and instability, on 1 March 2013 that the knee pain was unchanged and that the knee was still unstable walking and standing unchanged still restricted, on 28 June 2013 that the knee pain was aggravated two days prior twisting in the kitchen and that the " knee popped out" and that the left knee pain was severe at the time, on 16 August 2013 that whilst walking the knee gave way and then became swollen and was unable to use it for three days, on 8 October 2013 that the applicant was getting some right knee pain and that the left knee pain was an ongoing problem with the applicant grimacing in the doctors surgery with pain when it locked again, on 3 December 2013 right knee now painful with walking, left knee remains painful and unstable, on
10 January 2014 knee pain unchanged, still giving way three times per day, on
24 January 2014 that the left knee gave way and fell forwards on 21 January 2014 whilst going up the stairs, main problems are the right knee and ankle, on 31 January 2014 that the knee pain is still severe, on 18 February 2014 that the left knee had been collapsing from time to time, walks with a stick, feels more able to lift up to 5kg, driving automatic, on
18 March 2014 that the left knee still unstable and pain worsening, on 15 April 2014 that the left knee pain stabilised and ongoing, right knee pain ongoing, on 13 May 2014 that the left knee was still giving way 20 times per week with the a diagnosis of chronic left knee pain, on 17 July 2014 that the left knee was giving way intermittently, on 12 August 2014 that the left knee pain was persistent and unchanged, on 9 September 2014 that the left knee pain was ongoing and unchanged and that the applicant was aware that he “may” need a total knee replacement in the future, on 4 November 2014 that the left knee gave way and was aggravated the previous day whilst bending over to pick up branches after storm, felt hot burning iron like pain in inner knee, on 11 November 2014 some aggravation with standing all day at a wedding Saturday, unable to fully extend, walking with a limp, on 5 January 2015 not worked for four years, would not be fit to do normal hours and days, left knee pain unchanged, mowed lawn yesterday and in pain today and can’t do anything today, no significant change in knee condition, still unstable and on 2 February 2015 that the left knee gave way and twisted and landed on bottom nine days ago.
I agree with the respondent’s submission that the applicant’s evidence does not fully disclose the extent of the prior knee condition.
It is the applicant’s evidence that from 2015 to 2018 he had “fully recovered” from his previous left knee injury and was not experiencing any pain and was able to do all activities prior to the subject work injury on 17 September 2018.
In the applicant’s submission the clinical notes from the Erskine Park Family Clinic are consistent with the applicant’s evidence as no complaints in respect to either of the applicant’s knees are recorded in those notes between 3 February 2015 and
4 December 2018.
Whilst it is true that no complaints in respect to the applicant’s knees are recorded in the said clinical notes between 3 February 2015 and 4 December 2018, I agree with the respondent’s submission that the clinical record of 2 February 2015 is not consistent with the applicant having made a full recovery and not experiencing any pain and being able to do all activities. The clinical note of 2 February 2015 records that the left knee had once again given way and the earlier clinical note of 5 January 2015 records that the left knee remained unchanged, that the knee remained unstable and that the applicant would not be fit for normal hours.
Following 2 February 2015 there is then a gap in the clinical records with the applicant next attending on the Erskine Park Family Clinic on 27 October 2015. There is no evidence as to what occurred between 2 February 2015 and 27 October 2015.
It is the applicant’s evidence that he commenced employment as a truck driver with the respondent in or around 2017 working on a full-time basis with regular overtime. However, the applicant may have commenced with the respondent in 2016 with the clinical notes of the of the Erskine Park Family Clinic recording in an entry dated 21 September 2016 that the applicant was driving a truck with his right hand only after aggravating his should strapping loads.[74] Whilst the applicant complained of the previously mention injury to his right shoulder and also on 8 May 2018 of lower back pain which had worsened over the last few months with it being noted that the applicant was driving a truck,[75] there is no mention of any complaints in either knee and there is no evidence to indicate that the applicant was unable to perform his duties.
[74] ARD p. 253.
[75] ARD pp. 266-267.

Whilst we are left wondering as to the improvement in the applicant’s left knee condition prior to him commencing employment with the respondent; on the evidence there is no doubt that there had been a dramatic improvement. Prior to February 2015 the clinical records record that the applicant’s knee was giving way regularly, up to 20 times per week with little provocation. The applicant was also in constant pain which when aggravated (which appeared to happen regularly) could leave him debilitated for days. He was taking strong pain killing medications. Had lifting restrictions which ranged from between up to 2kg to up to 10kg with significant restrictions on his ability to stand and walk.
The applicant’s symptomatology, complaints and functional restrictions as recorded in the clinical records in and prior to February 2015 were in my view inconsistent with the applicant being fit to perform the duties of a truck driver and the role of truck driver does not appear to have been considered as a suitable option for the applicant prior to 3 February 2015.
The first clinical record of the applicant complaining of knee pain after 3 February 2015 is on 5 December 2018 when the applicant attended on Dr Sandy Lu of the Erskine Park Family Clinic who recorded that the applicant had injured his right knee the previous afternoon at work when getting off the back of a truck when he put his right foot down onto the ground and his right knee gave way and he fell to the ground.
Whilst both parties seem to have assumed that this clinical record relates to the subject work injury that does not appear to be the case. The subject work incident happened on
17 September 2018 some months prior to the clinical record.
That the clinical record does not relate to the incident on 17 September 2018 is reinforced by the report Dr Stephen Quain of 24 December 2019 in which Dr Quain took a history of the event on 17 September 2018 and that the applicant had a further episode of sharp pain and on this occasion sought advice from his local doctor. It is also confirmed by the report of
Dr Sullivan dated 18 December 2018 in which Dr Sullivan reported to Dr Lu that:
“over the last few months he has aggravated his right knee. He was climbing over the back of the truck and twisted and when he got down he felt the knee give way. Since then he has recurrent irritation, well localised to the medial aspect of the right knee.”
In the respondent’s submission the clinical note of Dr Lu of 5 December 2018 records an inconsistent history recording that the applicant reported occasional general soreness in his knees in the past but that they never gave way and never stopped him from working and that his left knee is the “’bad knee’ so often favours the right”. In the respondent’s submission the clinical note is inconsistent with the applicant’s evidence that he had recovered from his prior knee conditions by 2015 following which he was symptom free.
I accept the respondent’s submission that the clinical note of Dr Lu of 5 December 2018 is inconsistent with the applicant’s evidence particularly in respect to favouring the right knee. In respect to the applicant reporting occasional past general soreness in the knees but never giving way, and never stopping him from working there is some uncertainty as to whether this is inconsistent on two bases. Firstly, if the applicant is referring just to the right knee, then there does not appear to be any prior history of giving way and the main cause of the applicant’s previous incapacity was the left knee. The next entry in the clinical note is specifically in respect to the left knee which may indicate that it was only the right knee which was being referred to. Secondly the applicant may have only been referring to the period since re-entering the workforce in 2016/2017.
Similarly, the respondent submits that the report from Dr Sullivan dated 13 December 2018 which records that the applicant still gets some symptoms in the left knee but that does not worry him to the same extent as his right knee is inconsistent with the applicant’s evidence that his left knee had recovered. I again accept the respondent’s submission.
It is the applicant's evidence that Dr Sullivan performed an arthroscopy and partial medial meniscectomy on the right knee on 13 February 2019. That he continued to experience pain during healing process and was walking with a limp due to the pain and found it difficult to walk up and down the stairs. It is the applicant’s evidence that at around this time he predominantly used his left leg as a result of the ongoing pain in his right knee and at this time developed pain in his left knee.
Whilst I accept that the clinical note of Dr Lu of 5 December 2018 and the report of
Dr Sullivan of 13 December 2018 are inconsistent with the applicant having fully recovered from his previous left knee condition and the left knee having been asymptomatic, I am of the view that the clinical records indicate that the left knee symptoms were relatively mild prior to the right knee injury. Whilst Dr Lu records that the applicant referred to his left knee as being his bad knee, which is historically accurate, Dr Lu on 5 December 2018 records that the applicant was walking with a limp and that the right knee was slightly swollen compared to the left.
Dr Sullivan in his report of 13 December 2018 to Dr Lu whilst noting that the applicant still gets “some” left knee symptoms noted that those symptoms did not worry him to the same extent as his right was. Dr Sullivan on examination noted the applicant’s gait to be antalgic on the right side.
Dr Lu next examined the applicant on 10 December 2018 following MRI scans of both knees. Whilst Dr Lu noted the radiological findings in respect to both knees, the doctor did not record any complaints in respect to the left knee whilst noting ongoing right knee soreness. Dr Lu again consulted with the applicant on 17 December 2018 in respect to the right knee. The clinical note of the attendance records no mention of the left knee. Dr Ruhl examined the applicant on 18 January 2019 in respect to the right knee and at this point some four months after the work injury noted that the left knee felt unstable and gives way and catches with movement.
In the respondent’s submission the clinical note of 18 January 2019 is entirely consistent with what had been reported five years prior to February 2015 in relation to the left knee and is consistent with the clinical note of 13 December 2018 that the left knee was the bad knee.
I accept that the clinical note of 18 January 2019 contains similar complaints to those which the applicant complained of prior to February 2015. However, the clinical note is made some four months after the injury at work to the right knee. As previously discussed, it is in my view, that the applicant would not have been able to maintain ongoing employment as a truck driver from 2016/2017 if the knee symptoms which he had been experiencing prior to February 2015 had continued.
On 31 January 2019 Dr Sullivan reported to Dr Lu that the applicant had ongoing irritation of his right knee however on examination the applicant’s gait was observed to be satisfactory. On 13 February 2019 Dr Sullivan performed a right knee arthroscopy with partial medial meniscectomy.
On 26 February 2019 consistent with the applicant’s evidence, Dr Ruhl noted “getting left knee pains now” and on 15 March 2019 “getting left knee and lower back problems with physio”.
In the applicant’s submission the opinion of A/Prof Hope should be accepted. Having taken a history of the applicant’s previous pre-existing left knee complaints A/Prof Hope records that the applicant made a full recovery and had full function for eight years. In the opinion of A/Prof Hope the applicant developed left knee symptoms due to preferential overloading as a consequence of the injury to the right knee on 17 September 2018 which required a right knee arthroscopy. A/Prof Hope diagnosed left knee osteoarthritis with a consequential permanent aggravation of pre-existing osteoarthritis.
The applicant acknowledged in the submissions made on his behalf that there is an issue with the history taken by A/Prof Hope in that the doctor recorded that the “left knee was fully recovered with no ongoing symptoms and full function for 8 years prior to the work-related injury.” In the applicant’s submission that history is in response to a report obtained from
Dr Smith and in the applicant’s submission it is irrelevant whether the period is a period of three years or eight years.
In the respondent’s submission the error is both relevant and significant as it represents a five-year difference in the window of recovery of function and secondly the evidence in any event demonstrates that there was never a full recovery. In the respondent’s submission a fair climate is not created for the doctor’s opinion.
In the respondent’s submission the opinion of Dr Smith that there is bilateral knee constitutional osteoarthritis of the knees which is not work related should be accepted.
I prefer and accept the opinion of A/Prof Hope. Whilst I accept the respondent’s submission that the applicant’s left knee condition had not fully recovered and asymptomatic prior to the work injury on 17 September 2018 I am of the view, as previously discussed, that the applicant’s left knee condition did substantially improve prior to his commencing employment with the respondent as a truck driver. This is supported not only by the lack of complaints in the clinical records in regard to the knees between February 2015 and December 2018 but also by the fact that the applicant was able to perform his work duties as a truck driver from 2016/2017 until he sustained the work injury to his right knee. Duties which in my opinion he would not have been able to perform on an ongoing basis with the symptoms which the applicant was complaining of in and prior to February 2015.
In the initial clinical records following the injury to the right knee, the left knee whilst symptomatic was relative both to its pre-February 2015 condition and the right knee condition, of minor concern. It is not until 18 January 2019, some four months after the right knee injury, that Dr Ruhl records that the left knee felt unstable, gives way and catches with movement. It is then not until 26 February 2019, following the right knee arthroscopic surgery, that Dr Ruhl recorded that the applicant was “now” getting left knee pain. In my view the evidence is consistent with the applicant having suffered an aggravation of his left knee condition as a result of the right knee injury.
I do not accept that the opinion of A/Prof Hope is not made in a fair climate as a result of relying on a history that the applicant’s condition had fully resolved and was asymptomatic prior to the work injury on 17 September 2018 and that the applicant had been symptom free for eight years.
A period of three years is a significant period to have a reduction in symptoms, especially in circumstances where the applicant was able to perform work duties on an ongoing basis as a truck driver from 2016/2017 without seeking any medical treatment. The period of three years in my view is more than sufficient to establish that the applicant had not simply experienced some temporary short-term fluctuation in his symptoms but rather some genuine improvement. The applicant may not have achieved a full recovery in his symptoms however the improvement in his symptoms and his functional capacity following February 2015 was remarkable.
I also accept the applicant’s submission that Dr Smith does not answer the question as to whether a consequential injury to the left knee has been sustained as a result of the right knee injury. There is no issue on the medical evidence that the applicant suffered from degenerative left knee. Dr Smith however does not engage with the applicant’s condition following the right knee injury on 17 September 2018 to provide an opinion on consequential condition.
For the above reasons I find that the applicant has suffered a consequential condition to his left knee as a result of the accepted right knee injury.

Proposed surgery

Relevantly s 60 of the 1987 Act provides for the payment by the employer of medical and treatment expenses that are “reasonably necessary” “as a “result of an injury”.
The applicant has to establish that the injury materially contributed to the need for the surgery.[76]
[76] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy).
Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) when considering s 10(1) of the Workers Compensation Act 1926 (the 1926 Act) said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
Burke CCJ in Rose went on to state:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2) [the 1926 Act], it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a workplace injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) where Roche DP stated at [86]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
In Diab Deputy President Roche cited the decision of Burke CCJ in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose……namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.

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

In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy stated:
“[57] ….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.

[58] 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).”

On 13 February 2019 Dr Sullivan performed a right knee arthroscopy with partial medial meniscectomy.
The clinical records evidence that following the arthroscopy the applicant’s right knee has remained symptomatic.
In the applicant’s submissions the report of the treating surgeon, Dr Randhawa to Dr Ruhl dated 15 January 2025 supports the reasonable necessity for the proposed bilateral knee replacement.
Dr Randhawa in his report of 15 January 2025 observed that both of the applicant’s knees had continued to deteriorate. The doctor noted that he had previously thought at his initial assessment in 2022 that the applicant may be a candidate for a right knee partial medial unicompartmental replacement. However, the applicant’s right knee had deteriorated further, and in the opinion of Dr Randhawa total knee replacement surgery is now required. The doctor observed that the applicant had relied heavily on his left leg and left knee during this period of debilitation, and his left knee was now causing him almost as much pain as the right.

In the opinion of Dr Randhawa, the only option to improve the applicant’s pain and activity levels is to undertake bilateral knee replacement surgery. Dr Randhawa observed that MRI scans of both knees showed severe degeneration. In the doctor’s opinion any surgery short of total knee replacement would not be successful.
In the respondent’s submission the applicant had first sought an opinion from Dr Sullivan who thought that surgery was not necessary. In the respondent’s submission the applicant then sought a second opinion from Dr Randhawa who reported on 3 May 2022.
On 17 February 2022 Dr Sullivan reported to Dr Lu observing that the applicant had increasing symptoms about his right knee, that the knee catches with certain activities and occasionally swells. Dr Sullivan also noted that the applicant was experiencing some symptoms in his left knee. The doctor suggested getting an MRI scan but otherwise did not discuss or comment on future treatment.
On 3 May 2022 Dr Randhawa reported to Dr Ramachandran noting that the applicant had suffered a workplace right knee injury in 2018 and that an arthroscopic meniscectomy had been performed in 2019 after which there was improvement for a short period following which the right knee pain had been deteriorating significantly. In the respondent’s submission Dr Randhawa never takes a full history of the applicant’s knee complaints in respect to both knees and in particular in respect to the five-year period prior to February 2015.
In the opinion of Dr Randhawa, as of 3 May 2022, the applicant had severe medial knee pain on the right side which effected his basic activities of daily living and sleep. The doctor conducted an examination of the right knee and noted that X-rays showed severe osteoarthritis of the medial compartment which in the doctor’s opinion was expected after having a large meniscectomy performed in 2019. In the opinion of Dr Randhawa, the only possibility to improve the applicant’s activity levels and symptoms was a partial medial compartment knee replacement which usually achieved a good result for approximately seven years. The doctor observed that the natural course after this surgery was a total knee replacement after a few years which was dictated by the symptoms.
On 18 May 2022 Dr Randhawa requested approval for a right knee partial (medial) unicompartmental replacement.
On 15 June 2022 Dr Randhawa reported to Dr Ramachandran in respect to the applicant’s “acute” left knee injury. In the opinion of Dr Randhawa due the applicant’s altered gait and increased reliance on his left knee the applicant had suffered an acute injury to the left knee which occurred whilst he was merely standing in the kitchen and turning his legs for a basic task and experienced immediate pain. In the respondent’s submission this incident is the same as what the applicant was experiencing prior to February 2015 as recorded in the clinical records of the applicant’s GP’s.
Dr Randhawa observed that an MRI scan of the left knee which showed a tear of the medial meniscus and fraying of his ACL which in the respondent’s submission is similar to the pathology reported prior to February 2015.
In the opinion Dr Randhawa, the applicant at that stage required a left knee arthroscopy and debridement of his medial meniscus.
On 16 June 2022 Dr Randhawa requested approval for left total knee arthroscopy and partial medial meniscectomy.
On 20 February 2024 Dr Randhawa reported to Dr Ruhl recording that a couple of weeks prior the applicant had experienced a repeat fall with an injury to the right knee. The doctor observed that the applicant had been having recurrent falls due to instability of both knees, which was due to degeneration and osteoarthritis of both knees. The doctor also observed that a repeat MRI of the right knee showed progression of chondromalacia to the medial compartment as well as there now being Grade 4 areas to the medial femoral condyle and the tibial plateau. The doctor noted that another new development was a tear to the anterior horn of his lateral meniscus.
Dr Randhawa observed that it had previously been the plan to perform a partial right knee replacement and a total knee replacement on the left knee. However, due to the progression of pathology in the right knee, Dr Randhawa was of the opinion that right knee was now only suitable for total knee replacement and therefore the applicant now needed bilateral total knee replacements.
On 21 February 2024 Dr Randhawa requested approval for bilateral total knee replacement. The doctor repeated the request on 5 February 2025.
In the applicant’s submission the opinion of A/Prof Hope that the applicant requires bilateral knee arthroplasties due to the work related injury should be accepted observing that non-operative treatment had failed.
In the respondent’s submission the opinion of A/Prof Hope should not be accepted. The respondent submitted that the report of A/Prof Hope pre-dates the report from Dr Randhawa.
It is true that the repot of A/Prof Hope pre-dates the report of Dr Randhawa dated 15 January 2025 but it does not pre-date the report of Dr Randhawa of 20 February 2024 in which
Dr Randhawa initially recommends bilateral knee replacement.
As previously discussed in respect to the dispute in respect to consequential condition of the left knee the respondent submits that the doctor’s opinion has not been created in a fair climate due to his belief firstly that the applicant had a full recovery from his prior knee symptoms prior to the work injury and secondly the doctors belief that the recovery was for a period of three years. I have previously given reasons for rejecting the respondent’s submission which I will not repeat here for the sake of brevity.
In the respondent’s submission I should accept the opinion of Dr Smith who was of the opinion that the applicant may benefit from a right knee realignment procedure, that the applicant is too young for knee replacements and that the osteoarthritis is constitutional and longstanding.
In the applicant’s submission the reports from Dr Smith significantly predates the surgical request which is the subject of these proceedings.
The reports of Dr Smith do pre-date the request for bilateral knee replacement surgery. This does in my view significantly impact the weight to be given to the opinion of Dr Smith in respect to the proposed total right knee replacement surgery in particular given the change in Dr Randhawa’s opinion leading to him recommending the right knee replacement surgery following the MRI findings prior to his report of 20 February 2024.
In my view Dr Randhawa is in the best position to provide an opinion as to whether bilateral knee replacement is the most appropriate surgical option. The doctor has had the opportunity to review and examine the applicant on a number of occasions over a number of years. The doctor has also reviewed the most recent radiological studies as well as had the opportunity to discuss with the applicant his symptoms as they have progressed over time. The doctor’s opinion as to the best course of treatment has changed and developed with changes and developments in the applicant’s condition.
Whilst Dr Randhawa may not have taken a full history from the applicant as to the symptoms and condition of the applicant’s knees prior to the work injury, that does not affect the doctor’s opinion as to what treatment is appropriate but rather goes to the doctors opinion as to the causal connection between the work related right knee injury and the consequential left knee condition and the need for the proposed surgery. It also does not impact upon the doctor’s observation and opinions in respect to the any deterioration which the doctor has observed in the applicant’s condition since the doctor commenced treating the applicant.
The medical evidence clearly supports that the applicant has significant bilateral knee conditions which are having a substantial negative impact upon his life. In particular both knees are painful and regularly give way which at times causes the applicant to fall.
Considering the factors in Diab Dr Smith does recommend an alternate procedure however this is prior to the further deterioration and the additional pathology which Dr Randhawa notes prior to initially recommending the bilateral knee replacement. The costs of knee replacement treatment is commonly accepted by the Commission and it is an accepted and common surgical treatment which is recognised as being effective.
I accept the opinion of Dr Randhawa as to the proposed bilateral knee replacement being appropriate treatment for the applicant’s knee conditions.
As I have previously discussed, there is in my view, on the evidence no doubt that there had been a dramatic improvement in the applicant’s condition prior to commencing employment with the respondent with the applicant’s symptomatology, complaints and functional restrictions as recorded in the clinical records in and prior to February 2015 being, in my view, inconsistent with the applicant being fit to perform the duties of a truck driver from 2016/2017 until the work injury to the right knee.
Following the subject work injury there has been a significant deterioration in the condition of both knees. Following the work injury the applicant has progressed to an arthroscopy of the right knee on 13 February 2019 following which the applicant’s right knee symptoms have continued and worsened. By May 2019 the applicant had reported to Dr Ruhl that the right knee was giving way repeatedly. There is no evidence that this was the case prior to the subject work injury. Following the right knee injury the applicant’s left knee has also markedly deteriorated. I have previously found that the applicant sustained a consequential left knee injury for reasons which I will not repeat here, and I accept the opinion of A/Prof Hope that the applicant has suffered a consequential permanent aggravation of left knee arthritis.
I prefer the opinion of A/Prof Hope, which is in my view consistent with the applicant’s clinical history, following the subject work injury.
The opinion of Dr Assem that the applicant’s sedentary lifestyle following the work injury is unlikely to have subjected the left knee to substantial stress that would have significantly contributed to the progression of the pre-existing knee pathology and that any exacerbation would have been minimal does not in my view assist the respondent. I accept that the left knee was already degenerative prior to the work injury to the right knee. With the work injury to the right, the left knee whilst not asymptomatic at the time of the right knee injury, has become significantly more symptomatic and in this respect I accept the opinion of A/Prof Hope.
Whilst the previous knee conditions may contribute to the need for the proposed surgery 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.[77]
[77] Murphy.
For the above reasons I find that the bilateral total knee replacement surgery recommended by Dr Randhawa is reasonably necessary due to the accepted work injury to the right knee and consequential left knee condition.

[2025] NSWPIC 384

7 August 2025