BCW v Illawarra Shoalhaven Local Health District

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BCW v Illawarra Shoalhaven Local Health District [2023] NSWPIC 98
APPLICANT:	BCW
RESPONDENT:	State of New South Wales (Illawarra Shoalhaven Local Health District)
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	15 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injury on 23 March 2017 to back, left thigh, left knee, right knee, left foot, right foot, left ankle, and right ankle; claim for injury to back, left foot, right foot, left knee, right knee, left ankle and right ankle as a result of nature and conditions of employment; claim for injury to back and left hip as a result of altered gait and nature and conditions of employment; claim for weekly benefits; cost of bilateral total knee replacement surgery and permanent impairment as a result of injury to lumbar spine, left lower extremity, and right lower extremity; liability for frank injuries to left ankle, right ankle and left knee accepted; liability for frank injury to right knee and back disputed; liability for injury to back, left ankle, right ankle, left knee and right knee as a result of nature and conditions of employment disputed; liability for injury to back and left hip as a result of altered gait and nature and conditions of employment disputed; consideration of Castro v State Transit Authority (NSW) and Murphy v Allity Management Services Pty Ltd; Held – award for respondent in respect of claim for injury to or consequential condition of lumbar spine; award for respondent with respect to the claim for injury to the left knee, right knee, left ankle and left hip, due to nature and conditions of employment; award for applicant pursuant to section 60 for the costs of bilateral total knee replacement surgery; matter remitted to President of the Personal Injury Commission for referral to Medical Assessor for assessment of permanent impairment as a result of injury to left and right lower extremities (knees and ankles); matter to be listed for further preliminary conference after issue of Medical Assessment Certificate, for directions as to claim for weekly benefits.
determinations made:	1. There is an award for the respondent in respect of the claim for injury to, or consequential condition, of the lumbar spine. 2. There is an award for the respondent with respect to the claim for injury to the left knee, right knee, left ankle, right ankle, and left hip due to the nature and conditions of employment. 3. There is an award for the applicant, pursuant to s 60 of the Workers Compensation Act 1987, for the costs of bilateral total knee replacement surgery. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 23 March 2017. Body system/parts: left lower extremity (left knee and left ankle) and right lower extremity (right knee and right ankle). Method of assessment: whole person impairment. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) applicant’s Application to Admit Late Documents dated 31 January 2023, and (d) respondent’s Application to Admit Late Documents dated 24 February 2023. 6. The matter is to be listed for further preliminary conference before me, for directions with respect to the claim for weekly benefits, after the issue of the Medical Assessment Certificate.

STATEMENT OF REASONS

BACKGROUND

The applicant, BCW (BCW) is employed by the respondent, State of New South Wales (Illawarra Shoalhaven Local Health District) as a registered nurse (RN).
On 23 March 2017, the applicant sustained accepted injuries to her left and right ankles when she fell down a driveway at the home of a patient she was visiting. She also claims to have sustained injury to her back, left buttock, left thigh, left and right knees, and left and right feet.
The applicant also claims that the nature and conditions of her employment caused the aggravation, acceleration, exacerbation and deterioration of degenerative change in her knees, feet, ankles and back; and that her back and left hip were aggravated by her altered gait and conditions of employment after the injury.
The respondent completed an Initial Notification of Injury Form (INI) on or about
24 March 2017, and provided it to its insurer, Employers Mutual NSW Limited (EML).
The date of injury was recorded as 23 March 2017. The respondent was notified on
24 March 2017. The respondent recorded that the applicant was walking down a steep driveway in wet conditions and slipped.
The injuries were stated to be “pain and bruising to knees, legs, hips, buttocks, palms”. The diagnosis on the medical certificate was described as “Injury to left knee. X-ray pending, probably soft tissue”.
The applicant has provided an unsigned statement, dated 23 March 2017, at “14.20”. This appears to be an addendum to the INI.
The applicant stated (punctuation as in original):
“Walking down an extremely steep driveway unknown to workers that driveway was slippery wearing slip resistant leather enclosed shoes.
Feet slipped backwards and landed heavily on left ankle and foot and landed awkwardly Both feet under buttocks. Left leg and ankle took majority of impact and awkwardly position [sic] under me
Palms of both hands impacted with ground and right little finger lacerated. Immediate pain in left ankle and left knee
Very steep driveway
Slippery
Residents of complex informed that many people have slipped and fallen in that area
Fall from same level
Sat for a while
Helped to feet by other RN Luis Martin and two others due to steep terrain
Unknown as wearing appropriate footwear.”
On 15 November 2018, EML issued the applicant with a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which was then the relevant section.
EML disputed that the applicant’s employment was the main contributing factor to any disease injury, or to the aggravation, acceleration, exacerbation or deterioration of a disease; that she had an incapacity for work such as to entitle her to weekly payments of compensation; and that further medical treatment was reasonably necessary as a result of a workplace injury. EML maintained that the effects of any work related aggravation had ceased.
On 11 December 2019, EML issued the applicant with a notice pursuant to s 78 of the 1998 Act. It disputed that she was entitled to permanent impairment compensation, as her accepted injury (ankles) had not resulted in more than 10% permanent impairment; and it disputed that her claimed consequential condition (back and knees) resulted from her accepted injury.
If the applicant claimed to have sustained a frank injury, EML disputed that she had sustained injury arising out of her employment; and that her injury was received in the course of employment, “as required by section 9A” [sic] of the Workers Compensation Act 1987 (the 1987 Act).
If the applicant was “making a claim for a disease”, EML disputed that her employment was the main contributing factor to the contraction of a disease, and/or the aggravation, acceleration, exacerbation or deterioration of a disease.
On 28 June 2021, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed that she had suffered a recurrence of a previously accepted workplace injury. It noted she had refused to complete a recurrence form, so its understanding of what she was claiming was limited.
EML noted that the applicant’s only accepted injuries were to her ankles. It appeared that the recent flare in symptoms was in relation to her left knee, which was not an accepted injury. EML maintained that, as the applicant refused to complete a recurrence of injury form or allow Wollongong Medical Practice [sic] to release her medical records, she had failed to cooperate with it; to provide all relevant particulars; and had obstructed it in the investigation of the potential recurrence.
By letter dated 9 December 2021, the applicant’s solicitors made on the respondent a claim for weekly benefits from 20 November 2017 to 4 June 2018; from 18 February 2021 to
14 March 2021; and from 13 May 2021 to date and continuing. They advised that the applicant “will be making a claim for treatment expenses”.
It appears that EML considered this letter of claim as a request for a review of its decision dated 11 December 2019, as it issued a review notice, pursuant to s 287A of the 1998 Act, on 23 December 2021.
EML again declined liability for payment of weekly benefits and medical treatment. It disputed that the applicant’s bilateral knee and lumbar spine injuries were compensable, pursuant to ss 4 and 9A of the 1987 Act; that the claimed consequential conditions resulted from her accepted injury; and that she was entitled to either weekly benefits, permanent impairment compensation, or medical expenses. The notice started that liability for any psychological injury was disputed. There does not appear to have been a claim for psychological injury.
On 5 July 2022, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act. This notice referred to an injury on 20 August 2021. EML disputed liability for injury to, or consequential condition of, the applicant’s lumbar spine.
The applicant lodged an Application to Resolve a Dispute (the Application) on
8 November 2022.
The applicant claimed that on 23 March 2017, when visiting a patient, she fell down the driveway, injuring her back, left thigh, both knees, both feet and ankles. She also claimed that the nature and conditions of her employment, in combination with the specific injury in 2017, caused the aggravation, acceleration, exacerbation and deterioration of the degenerative change of her knees, feet, ankle and back. “The back and hip” were further aggravated by her altered gait and conditions of employment after the work injury. The specific event in 2017 caused a ligamentous change to the ankles.
At the preliminary conference in this matter, the applicant clarified that the reference in the Application to “hip” was to her left hip.
The applicant claimed weekly benefits from 20 November 2017 to 4 June 2018; from
18 February 2021 to 14 March 2021; and from 13 May 2021 to date and continuing. She also claimed the sum of $65,097.16, pursuant to s 60 of the 1987 Act, for past medical treatment; and $93,920 pursuant to s 66 of the Act, in respect of 33% permanent impairment, as a result of injury to her lumbar spine, left lower extremity, and right lower extremity.
The respondent lodged its Reply on 2 December 2022.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a)     whether the applicant has sustained injury to her left and right knees, lumbar spine or left hip, either as a result of the personal injury claimed, consequential condition, or disease. The respondent accepts that the applicant has sustained injury to her left and right ankles;
(b)     the applicant’s work capacity. The respondent maintained that she has the capacity to earn more than 80% of her pre-injury average weekly earnings (PIAWE) in modified employment, and
(c)     whether the respondent is liable for the cost of surgery to the applicant’s knees.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference before me on 12 December 2022. Ms Bates and Ms Kava appeared for the applicant; and Mr Khoshaba appeared for the respondent.
Ms Popovich and Ms Jacobs of EML, and Mr Elech of the respondent attended.
The respondent was directed to advise, on or before 9 January 2023, whether it disputed that the applicant had sustained injury to her left and right ankles. It was also directed to file and serve a wage schedule, if it disputed the wage schedule on which the applicant relied.
The matter was listed for conciliation/arbitration hearing on 7 February 2023, on the Teams platform. Mr Stockley of counsel, instructed by Ms Bates, appeared for the applicant, who was present. Mr Hanrahan of counsel, instructed by Mr Khoshaba and Ms Mansour, appeared for the respondent. Mr Kim of EML and Mr Elech also attended.
Mr Stockley advised that the applicant’s claim proceeded on the basis of the frank injury on 23 March 2017; and the nature and conditions of her employment, which is supported by
Dr Bodel. Her claim for permanent impairment compensation is based on his assessments.
There is a claim for broken periods of weekly compensation, in respect of which the applicant’s wage schedule may require some analysis and refinement. In general terms, her economic loss is reflected in periods where she has taken long service leave (LSL), sick leave (SL), recreation leave, and leave without pay (LWOP). The 130 week period was close to expiring.
Mr Hanrahan advised that the respondent disputed that the “nature and conditions” claim was adequately pleaded. There was no claim that the applicant had suffered a disease, and the period of nature and conditions relied upon was not pleaded. There was no deemed date of injury for the nature and conditions claim.
The respondent was unsure whether the phrase “in combination with” meant that the two conditions should be considered together, or whether there should be apportionment between the frank injury and the nature and conditions of employment.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,644.
Despite the apparent agreement of the matters in dispute at the commencement of the hearing, the respondent then submitted that it conceded that the applicant has sustained injury to her left and right ankles, and to her left knee, but not to her right knee.
The applicant submitted that it is a matter for me as to whether the medical dispute as to the applicant’s claim for permanent impairment should be referred to a Medical Assessor (MA) before her claim for weekly benefits is determined, but the respondent suggested I would benefit from such assessment.
The respondent was directed to file and serve the Application to Admit Late Documents (AALD), dated 3 February 2023, and attachments, a copy of which was provided and admitted at the hearing, on or before 14 February 2023. The AALD was filed on
24 February 2023.
The attachments to the AALD were a wage schedule and supporting documents, and a letter dated 3 February 2023, which advised that the respondent disputed that the applicant had sustained injury to her left and/or right ankle as a result of the nature and conditions of her employment. There was “no dispute for the worker’s claim for her bilateral ankles arising out of the frank injury”.
These were the documents that I directed were to be provided on or before 9 January 2023.
The applicant was directed to file an updated wage schedule on or before 14 February 2023. The wage schedule was filed on 15 February 2023.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s AALD dated 31 January 2023 and attached documents;
(d)    applicant’s wage schedule dated 15 February 2023, and
(e)    respondent’s AALD dated 24 February 2023.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, BCW

The applicant has made several statements. Much of her evidence is repetitive and irrelevant. I have attempted to summarise the relevant evidence.
BCW’s first statement is dated 9 November 2020.
She disclosed during the recruitment process for employment with the respondent in November 2016 that she had bilateral knee arthritis, and the “recent incident” with her right knee from which she had recovered. She also disclosed that she had been informed that she was a candidate for bilateral knee replacement surgery but was not at the stage of having it. It is a mandatory requirement of New South Wales Health that arthritic changes be disclosed.
She commenced work for the respondent in January 2017.
On 23 March 2017, she sustained injuries while performing a home visit. She and her colleague were required to access the town house by a steep driveway. It was raining and the ground was wet.
She and her colleague were walking down the driveway when her non-slip shoes suddenly gripped. It propelled her knees and body forward over the top of her toes. Her knees hit the ground and her buttocks landed very heavily and slammed against her heels/back of her shoes. Her left thigh went on an abnormal angle.
The bones in her feet felt like they were popping through the soles of her feet. Her knees made a popping/cracking noise as her calves closed on her thighs. She felt she had dislocated her knees, ankles, and feet. She had slid a bit further down the driveway, sustaining abrasions to her knees, tops of her feet, and she thinks her little finger and right hand.
Her colleague and two men from one of the townhouses helped her to her feet and assisted her to the flat part of the driveway. She entered the consumer’s house and was given an injection. Her colleague drove her back to ICMH (Illawarra Community Mental Health) and reported the incident.
Her husband and son attended ICMH and took her to her general practitioner (GP),
Dr Andrew Mackie, at the Wollongong Medical Centre (WMC). Dr Mackie ordered X-rays and later a CT scan, when a fracture was suspected. No treatment but physiotherapy and strapping was recommended.
Her return to work (RTW) coordinator, Allison Brown, requested that she see another doctor in the practice, as her GP did not work the same days as Ms Brown. She felt pressured to change, so she changed. She was feeling very pressured to “get over it”.
She had to change her way of doing practically everything. She lost her ability to walk up and down stairs. Walking on uneven surfaces was painful on her ankles, back of her left thigh, and buttocks. The symptoms in her knees increased, constantly locking, and much more pain, combined with increased instability and altered gait.
Her knees had not recovered from the fall, and she was again “lagging behind when walking”, and slowly losing her strength and previous mobility. It became clear that having pre-existing arthritis in her knees was going to be an issue in maintaining her employment.
She was told by her RTW coordinator, EML, her Nurse Unit Managers (NUMs), new GP “etc” that her arthritis was pre-existing, so was not part of her workers compensation injury.
Her ankles were not progressing as she hoped and were becoming inflamed and swelling again. She decided she had plateaued, and her muscle strength in her lower limbs was declining, due to her inactivity at work and her injuries.
She booked six months LSL to have bilateral knee replacements at her own cost. She had to maintain her employment “at all costs”. This action was to take her knees “out of the equation” so she could not be medically retired, see if it helped with her ankles, and maintain her employment.
She had bilateral knee replacement surgery on 22 November 2017 and participated in all rehabilitation that was open to her.

She informed her orthopaedic surgeon that her knees were not part of her injury as she had been instructed. Her surgeon was not really aware of the extent of her injuries sustained in the workplace fall. They were never discussed in detail.
She continued to have intense ankle pain throughout her recovery. She worked as hard as she could to ensure the quickest recovery with her knees. Her ankles remained problematic and painful, although there was some improvement.
When she returned to work in June 2018, she was withdrawn from face to face contact with consumers, due to the “risks” post knee replacements and not being able to perform CPR (cardiopulmonary resuscitation) on her knees.
Her hip pain almost resolved, but she still had deep pain in the left buttocks and back of her left leg, but not to the degree she had in the acute stage, or during the initial six weeks upon returning to work. Her lower back pain flares up with too much standing or sitting.
She was working full time at ICMH in a permanent office based position with no face to face contact with consumers. This contributed to increased pain and further decline in her lower limb symptoms and overall degenerative process from the injuries on 23 March 2017.
Her ankles/feet/back remained problematic and “by no means could be deemed stable”. Her feet and ankles continued to deteriorate. Her right knee caught at the back when walking. Both knees felt like [they had] and had swelling when she stood for too long in a fixed position. Walking could be “a bit odd afterwards”. There was mild swelling on the lateral sides of both knees. Her left knee was less troublesome. Her right knee locked at night sometimes, which was very painful but short lived.
She continued to have difficulty with stairs. Pivoting was difficult, as well as her knees giving way, but she tried not to restrict her walking. The knee replacements had improved her quality of life.
Her ankles continued to be problematic. Walking on uneven surfaces caused pain, which caused her to become unbalanced. Her ankles could click, catch, swell or be painful. Pain could be triggered by driving, walking, sitting, uneven surfaces, and walking on inclines. Low chairs sometimes triggered pins and needles in her lower legs and feet.
She had pain in her lower back, deep into the left buttock and back of the left leg. This was associated with sitting for periods, driving, standing for long periods, carrying things “etc”. She required a sit to stand desk.
She has provided an overview of nursing tasks since the 1970s. It is unnecessary to refer to that evidence in detail here. Suffice to say, it involved heavy manual handling, often without the benefit of lifters, and sometimes in confined spaces. Work health and safety improved dramatically in the late 1990s.
The applicant’s next statement is dated 25 January 2021. It is a critique of a report dated
24 October 2017, from her treating surgeon, Dr Brett Fritsch, to Dr Mackie.
She had had only one fall, her workplace fall. She had no history of “falls”. Dr Fritsch had also referred to removing her surgical clips. She did not have surgical clips, but “big, sutured wounds on both legs”.
The applicant’s next statement is dated 17 August 2022.
She had “endured multiple attempts” to discredit her claim, threats to remove her from her employment, removing her reasonable adjustments, removing her from a safe workspace, and openly informing other staff that she would not be continuing at ICMH.
At no time was there any issue with her performance, colleague relationships, or other concerns. Her substantive position from June 2020 was suitable for a disabled or able clinician. This removed any confusion by management that she was able to perform her role without prejudice or barriers. Upper management confirmed that her position was ongoing and permanent.
On 11 February 2021, she was informed by management that she was required to go on SL as she did not have a work-related injury. Reasonable adjustments were not accepted, and her working at ICMH was considered a high risk.
On 15 February 2021, she was informed her substantive position was not going to be deleted and her job was safe.
Reasonable adjustments were removed on 18 February 2021, and Dr Mackie put her on medical leave. Over the next few weeks, ergonomic assessments and meetings took place, and on 10 March 2021 all reasonable adjustments were agreed and put in place.
On 11 March 2021, a clearance medical certificate was provided to ICMH. Commencement at work would occur on 14 March 2021.
A letter of concern “re room” was sent to NSW Nurses and Midwives’ Association (NSWNMA) on 12 March 2021.
She commenced work at a new location on 14 March 2021. The arrangement of the room was “not ideal”. The NUM 3 would not agree to any other workspace.
On 17 March 2021, a letter was sent to NSWNMA to resolve reasonable adjustments regarding rostering, which was done by NSWNMA.
On 11 May 2021, there was an increase in pain that she was not able to change, and the pain did not resolve during rostered days off. She had pain in her back, resulting in pins and needles and pain down her legs to her ankles and feet at night. She was unable to sleep for more than a few hours at a time.
On 13 May 2021, her GP put her off work for a week. She informed her NUM that increased pain was the reason, and this was a complication of her workplace injury. Her certificate of capacity (COC) was altered, and she commenced a week off.
Her NUM managers 1 and 3 referred the issue to IHLD Workers Recover @ Work Team. She received a call from “Claude”. She was open and honest, and explained her injury was “under declination” and the matter was in dispute.
On 24 May 202, she received an email from NUM 1. She was to inform her by return email whether she wanted her shifts entered as LWOP or AL paid as SL. AL would not be re-credited if liability was accepted by the insurer.
On 28 May 2021 she received a call from EML. She signed the ROI (recurrence of injury) form as requested and informed them of an increase in pain at home and at work over a period of weeks. There was no further contact from EML.
There was some improvement in mobility and pain over a six week period, and there was contact and update with NUM 1 at ICMH.
In July 2021, she received the notice from EML dated 28 June 2021. She disputed that she was non-compliant, as this was not a “recurrence of injury” but an exacerbation of the chronic pain that had continued post-injury, which the generic form did not reflect.
As a “declination” had occurred following a previously accepted claim, it was unreasonable to think EML would decide to accept a declined claim.
When EML attempted to access her clinical records from the WMC they “cheekily” requested her complete medical file. This was not agreed to, so she declined when WMC identified this issue.
She had improved somewhat, but her pain continued, and although not as severe, woke her at night. Her COC indicated that she had no capacity for work, and additional pain medication had been added.
Her symptoms were lower back pain, radiating to the left hip most days, and increasing when sitting or standing in a fixed position; back pain when walking for over 10 minutes, radiating to the left hip at 20 minutes; weakness in the legs when ankle and foot pain worsened, for example when walking on uneven surfaces; woken most nights with pain. This had settled somewhat since initially ceasing work, when it was constant and excruciating when in bed. Pins and needles down both legs were constant in bed. They are no longer constant and have settled to manageable levels.
She had had these symptoms since her accident, to varying degrees. They had never gone away. She was able to manage them in the past at work. However, they had worsened over time and never resolved completely. She had had chronic pain since her accident. Her knees were nowhere near normal.
She was on LSL at half pay, as she had exhausted her SL.
The applicant’s last statement is dated 8 March 2022 but was signed on 26 October 2022.
The force of her buttocks hitting her heels has caused her to suffer pain in her hip and then back ever since. Her feet, ankles, legs and both knees have never been the same since the fall.
In the early acute stage, the pain involved both feet, ankles, and both knees. The pain and spasms in the left hip, buttocks, ankle “etc” were much worse than the right side. It didn’t mean that the back issue and right ankle weren’t causing pain too, it was just that the left side of her body pain was excruciating.
Prior to her knee replacement surgery, she was working in the office. The pain in her back was only an issue when she turned over in bed, getting up and down from a chair, twisting, or when she sat too long on the “old inappropriate chair I was assigned”.
Over time it became clear her knees were not recovering after the fall. Her gait was getting much worse, despite physiotherapy, and the pain was not improving as quickly as she would have liked.
It became clear, after discussion with her treating team, that if she wanted to maintain her employment, she should have bilateral knee replacements. She did this at her own expense, and took LSL, as she was told by her managers and RTW coordinator “etc” that as she had pre-existing self-reported arthritis in her knees [sic].
The main factors to her deteriorating mobility and increased pain in May 2021 included being “tied to a desk”. Her workspace position meant she had another clinician’s chair directly behind hers. To stand, she had to turn her chair sideways so as not to bump the other chair. Twisting all the time caused further aggravation to her back.
Her goal had always been to maintain her employment and return to work in some capacity. She has not been able to achieve this due to mobility issues and associated pain.
She recently purchased folding walking sticks and bandages to assist in walking, as she repeatedly had difficulty walking due to back, hip, leg, and ankle pain.
Part of the annual accreditation of an RN is basic life support (BLS). There is a requirement to achieve 100%, which she always achieved, on a written assessment. The second part is a BLS and CPR assessment by nurse educators. If you cannot perform CPR on a chair/bed/floor “etc”, she was told you would be medically retired.
She was finally approved for a modified BLS/CPR assessment in March 2021, which would expire in March 2022. Any change in symptoms would affect her reaccreditation. This could still result in medical retirement.
ICMH managers stated that her difficulty kneeling was only due to her prosthetics, this is therefore a non work-related injury, and forced SL can be imposed. She disputed this, as she had always stated on her health condition form since her arthroscopy in “?2006” that she had arthritis in her knees. This had never previously prevented her performing CPR, securing new opportunities, and transferring to permanent positions.
She was always able to perform CPR on her knees prior to the fall, when this issue occurred for the first time.
She was proactive in looking for other positions more suitable for her injury within her LHD (Local Health District), since the restructure of her roles, should she able to return to work.
Ever since the fall, although her right ankle and foot were injured less severely than her left, they have had to compensate for the injuries on the left. Her right ankle and foot had deteriorated to the extent that she limped on the right leg.
She still had an ache in her lower back. Standing in one spot or for too long “etc” can trigger it. Rolling over in bed woke her. “Peeling vegetables” [sic].

Medical evidence

Wollongong Medical Centre

The medical records have been produced, subject to two redactions, which Dr Mackie has stated relate to the applicant’s husband. Many of the entries contain little detail. I have not referred to every entry.
There is a request on 15 August 2012 for MRI of the left knee, and “Letter Created – re orthopod”.
On 25 March 2013, there is a notation of X-ray results – “OA (osteoarthritis) of knees”.
On 16 July 2013, there is a notation of lower back pain, with no radiation or neuropathy. The diagnosis was paraspinal muscle strain.
On 14 October 2016, Dr Mackie recorded “knees, ankles, feet, heels, wrists, hands (not elbows) a bit shoulders pain arthritis 5 days”.
On 11 November 2016, Dr Mackie recorded “anxiety”, “issues at work”, “and swelling and pain in right knee”. MRI of the right knee was requested, “(acute inability to straighten right knee ?ACR tear or meniscal tear)”.
On 18 November 2016, Dr Mackie recorded that the reason for the applicant’s visit was right knee pain. She was “seeing physio. Refer orthopod ?cartilage repair”.
Dr Mackie recorded on 25 November 2016 that knee pain continued, “improving with physio”.
On 2 December 2016, Dr Mackie recorded that the applicant was booked for bilateral knee replacement on 20 December.
On 16 December 2016, Dr Mackie recorded that the applicant had cancelled the knee operation.
On 5 January 2017, the applicant attended for a blood pressure check. Dr Mackie recorded “and knees much better. Back to work from next week”.
Dr Mackie recorded on 23 March 2017 that the applicant “fell at work today on driveway visiting a client at home”. Her left foot went backwards behind her, and she “went down onto both knees, more heavily on the left knee”. There was an abrasion on her left knee, and increased walking disability.
Dr Mackie requested X-rays of both the applicant’s knees and of her left foot and ankle.
On 31 March 2017, Dr Mackie recorded locking of the left knee, and “? fracture left med[ial] malleolus”. He ordered MRI of the left knee and CT of the left ankle.
On 5 April 2017, Dr Gillian Perriment recorded that the applicant had bilateral ankle injuries on 23 March 2017. Plain films and CT showed a chip off the lateral and medial malleolus. This suggested an underlying tendon injury.
The applicant had also injured her left knee in the fall. It swelled within the first hour and had had intermittent locking since. This suggested a loose body. MRI was booked for tomorrow.
Dr Perriment referred the applicant to “Virginia” for physiotherapy, for work related bilateral ankle injuries.
On 10 April 2017, Dr Perriment recorded that the MRI showed severe lateral and femoral/tibial OA. There was moderate knee joint effusion. The applicant had a flareup of her pre-existing OA. She was seeing a physiotherapist for the severe tendon injury of her ankle.
On 12 May 2017, Dr Perriment recorded that four hours per day were flaring up the applicant’s joint pain “(steep driveways, uneven ground)”, and she was on office duties. She was very distressed and tearful. She felt she had to justify her injuries and why she was not better, in an open office in front of colleagues. She felt her original physiotherapist was not proactive enough.
On 24 May 2017, Dr Perriment recorded that the applicant had a flareup of her pre-existing knee OA, worsened by the ankle injuries altering her gait. Work stressors continued and she found them very distressing. She was making good progress, trying hard, compliant with physiotherapy, and working full time.
On 24 July 2017, Dr Aase Pacey recorded that the applicant was struggling with the four hours in the community work. Carrying a bag was hard, “improving other than with walking down stairs”.
There were a number of consultations at which the applicant complained of bilateral ankle pain. She was fearful of losing her job and was counselled.
On 27 October 2017, Dr Pacey recorded that the applicant would have bilateral knee replacement on 22 November.
There were a number of consultations after the surgery for pain management, and discussions about the applicant returning to work. On 7 June 2018, Dr Mackie recorded “difficulty with employer +++++”.
On 6 July 2018 Dr Mackie responded to questions posed by EML.
Dr Mackie agreed with Dr Ray Wallace, qualified by EML, that the applicant’s left hip and bilateral knee injuries had resolved; and her current knee symptoms were due to her recent bilateral total knee replacement (TKR) the need for which was unrelated to the work incident.
Dr Mackie disagreed that the applicant was fit to resume her pre-injury duties. She still had some instability as a consequence of the surgery.
On 3 August 2018, Dr Mackie recorded “Back pain exacerbated by sedentary nature of return to work and pins and needles both legs”. He ordered X-ray of the lumbo-sacral spine, pelvis and hips, noting low back pain.
On 28 September 2018, Dr Mackie recorded that the reason for the applicant’s visit was “Counselling. New big drama”. There is then a redacted entry. Dr Mackie noted that the applicant had taken AL from lunch time yesterday until the end of next week. The Medical Director gave her the leave. “The NUM has been refusing to give her leave all along”.
On 16 June 2019, Dr Mackie reported to the applicant’s solicitors. He has responded to questions that are not in evidence, so the report is of limited value.
Dr Mackie reported “For this matter…” the applicant had consulted him on 23 March 2017. She had consulted him before that date for other matters.
The history provided by Dr Mackie was consistent with that recorded in his clinical notes. He provided diagnoses of bilateral ankle tears and left knee internal injury. There was severe inflammatory flareup of pre-existing OA in the left knee, MRI scan showing acute inflammation.
Dr Mackie opined that the incident was the only contributing factor to the injuries; and “a major contributing factor to further degeneration”.
The applicant’s condition had stabilised. Further improvement was virtually impossible, and future deterioration was likely with aging.
The applicant was fit for work and was working full time as an RN. She was not fit for field work and was not to work on uneven surfaces. Her current work duties were not aggravating her condition.
On 18 October 2019, Dr Mackie recorded “numbness. Seems to relate to position sitting at work”. He ordered CT of the lumbo-sacral spine and coccyx, noting lumbar pain and numbness in the perineum.
On 17 January 2021, Dr Sylvia Tomson recorded “pain in lower back. H/o ch[ronic] lower back on/off”. The applicant requested that the medical certificate read “medical problem not back pain”.
On 12 February 2021, Dr Mackie recorded that the reason for the applicant’s visit was “work stress”. He noted “? INITIATE WORKCOVER”. (Capitalisation in original).
On 19 February 2021, Dr Mackie recorded that “they moved her desk at work at a very busy time. Swamped”. The new location was cramped. There was no phone on the desk and the applicant could not access emails.
On 7 March 2021, Dr Tania Rizak recorded ongoing issues at work, with RTW people. The applicant was “stressed”.
On 11 March 2021, Dr Rizak recorded that the reasonable adjustments of the applicant’s workplace had been done and she could return to normal duty from 14 March 2021.
On 22 April 2021, Dr Mackie recorded issues with stress at work.
On 13 May 2021, Dr Mackie recorded that moving from the applicant’s chair at work provoked discomfort, in a confined space.
Dr Mackie also reported to, it is assumed, the applicant’s solicitors, on 13 May 2021. Once again, the questions he was asked are not in evidence.
Dr Mackie reported that the applicant generally did well by pushing herself to keep working. She suffered from pain and reduced flexibility. “…the goal posts at her workplace keep moving”. Her desk was located in a tight location. With her back, knee and ankle problems, this made manoeuvring very difficult, and she was suffering more pain at the moment.
The applicant had had the capacity to work with some restrictions since the knee replacement and at the beginning of 2021. With restrictions, she was able to work eight hours per day, five days per week.
Dr Mackie opined that the applicant’s work did not require an enormous amount of physical activity. However, her fall had definitely caused problems with her back, knees and ankles. Continuing to work was making things worse.

The aggravation was continuing to the present time, and was probably worse in the recent past, since her workstation was moved.
On 20 May 2021, the applicant was “not managing. Pain too much at new workstation”.
On 10 June 2021, Dr Mackie recorded that the applicant had problems controlling her ankles and knees when walking. It was the worst it had been. Changes in the surface triggered pain. The pain was at the front of the ankles.
On 13 September 2021, Dr Amjad Ali recorded that the applicant had back pain, “limping”. The pain was non-radiating. There were no urine or bowel symptoms.
On 20 May 2022, Dr Mackie recorded that the reason for the visit was bilateral knee pain. Buttock and ankle pain continued from the fall.

Mr Phillip Parle – physiotherapist

Mr Parle reported to Dr Perriment on 26 June 2017.
Mr Parle recorded a history that the applicant slipped on a driveway and landed facing downhill. She injured her left ankle, more than her right; right and left knees; and left lateral hip.
At 12 weeks, the applicant’s hip had resolved. Her knees were just about at pre-injury level, although she lacked confidence if out of her comfort zone. Her right knee pain was mildly elevated relative to pre-injury, and most apparent on downstairs. She had developed her own gait to cope with her knees and may improve with strengthening and fine tuning.

Dr Murray Sinclair – injury management consultant

Dr Sinclair was qualified by EML and reported on 7 September 2017.
The history recorded by Dr Sinclair was like that provided by the applicant in her first statement. She commenced physiotherapy but became troubled with severe shooting pain along the lateral aspect of the left thigh, which radiated down the left leg and into the foot.
The applicant had had minor back aches as a nurse, but these had become much better since she was not lifting regularly. She had had no back problems for the last 20 years. Examination of her lumbar spine was normal.
Dr Sinclair opined that the applicant’s rehabilitation had been slow, due to pain in her feet, ankles, knees, and left buttock. She still had problems with mobility and negotiating stairs.

Dr Brett A Fritsch – orthopaedic surgeon

Dr Fritsch reported to Dr Mackie on 24 October 2017. He recorded having last seen the applicant in December 2016.
The applicant had been planning to have both her knees replaced, but she and her family thought it best that she hold off. Dr Fritsch opined that “we’re now back at a point where that’s the only option”.
The applicant was “having a lot of trouble”. She had started having falls, and the recent one was very heavy. She had increased sensation of instability, particularly on the right side, and an episode of spontaneous footdrop, which resolved.
Dr Fritsch opined that the applicant had “held onto her own knees for as long as possible”, and now needed them both replaced.
Dr Fritsch reported to Dr Mackie on 22 November 2017.
Dr Fritsch had performed bilateral TKR on 22 November 2017.
“Everything went very well”. The applicant was to spend the next five to seven days in hospital, and Dr Fritsch would see her at the two week mark to remove the surgical clips, and at six weeks with a check X-ray.
On 25 January 2018, Dr Fritsch reported to Dr Mackie that the applicant was “doing great”. She was very happy with the right knee and a little concerned about the left. She had some symptoms, despite the same objective range of motion.
Dr Fritsch had reassured the applicant and suggested she cut way back on her physiotherapy.
On 22 May 2018, Dr Fritsch reported to Dr Mackie that the applicant’s knees looked “great”. She was keen to return to work, and he saw no reason why she shouldn’t. It would be a good thing for her to get back into all her work duties.
Dr Fritsch reviewed the applicant on 15 November 2018, when he recorded that watching her walk around the room, “you’d hardly know she’s had” bilateral knee replacements.
The applicant continued to improve. She did not get much pain, knew she could work well and perform all her duties, and was much better than prior to the surgery. She still felt a little weak, and sometimes had a clicking sound at night. It felt like her knee may lock, though she never had trouble with the movement.
Dr Fritsch reassured the applicant and arranged for his physiotherapist to show her some simple exercises to keep building strength, so perhaps her confidence would improve. He was to see BCW again in 12 months, but there are no further reports from him.

Dr Andrew Keller – occupational physician

Dr Keller was qualified by EML and reported on 12 April 2018.
Dr Keller recorded that on 23 March 2017, the applicant slipped on a slippery driveway. She landed on her knees with her buttocks on her ankles, and slid down the drive, causing grazes to her legs. She reported immediate pain in both hips, knees, and ankles.
Dr Keller has recorded the applicant’s treatment, including left and right TKRs “for osteoarthritis”. He has noted this was “unrelated” (to the injury). She was essentially doing her pre-injury role before taking six months LSL, which was due to finish in May 2018.
The applicant reported intermittent pain in both ankles and both knees. Dr Keller reported that general examination of her neck, back and upper limbs was normal.
Dr Keller opined that the injuries to the applicant’s knees, ankles, and feet represented aggravations of pre-existing significant OA change. She had the capacity to work full time, but should she be re-allocated to a role in a hospital or office-based environment until retirement age, the risk of new and worsened injuries to her legs would be diminished.
Under those circumstances, the applicant could immediately be certified fit for pre-injury duties without restrictions. She agreed with this.

Dr Ray Wallace – orthopaedic surgeon

Dr Wallace was qualified by EML and reported first on 18 June 2018.
Dr Wallace recorded a history that the applicant slipped and fell forwards onto her knees, with her legs flexed underneath her. She noted pain at her left hip, knees, and ankles.
On 15 November 2017, the applicant took LSL to undergo bilateral TKR. She remained off work until 12 June 2018, when she returned to full time light duties, avoiding home visits.
The applicant’s history included left knee arthroscopy and lateral meniscectomy in 2006. From 2014, she was diagnosed with degenerative arthritis of bilateral knees. In 2016, an orthopaedic surgeon suggested she would require bilateral TKR when she was “ready”.
Dr Wallace recorded that the applicant’s left hip symptoms had resolved. She noted a global aching pain at her knees since undergoing bilateral TKR in November 2017. She also noted pain in her ankles, with intermittent swelling with activity.
Dr Wallace diagnosed capsular strain of the left hip, now resolved; soft tissue injuries of the knees, now resolved; and ligamentous strain of the ankles. The applicant’s ankle conditions were the result of a fall at work, and her employment was a substantial contributing factor to her current ankle conditions. Her bilateral knee conditions were due to pre-existing degenerative OA at the joints, culminating in bilateral TKR in November 2017. The need for the surgery was unrelated to the work incident.
Dr Wallace opined that the applicant was fit to resume her pre-injury duties as an RN without restriction. She had no work incapacity as a result of any conditions at her bilateral ankles; and her left hip and bilateral knee injuries of March 2017 had resolved. Her current work incapacity was related to her bilateral knee conditions, due to her recent knee surgery.
Dr Wallace’s next report is dated 26 November 2019.
The applicant’s history was consistent. She claimed that, after her return to work in
June 2018, she noted a recurrence of her lumbar spinal pain with prolonged sitting.
The applicant complained of constant aching pain at her lumbar spine, in the region of the L4/5 spinous process, radiating to the paravertebral regions bilaterally, and the posterior aspects of the thighs, to mid-thigh bilaterally. She noted intermittent paraesthesia at the medial aspect of the calves, bilaterally.
The applicant continued at full time light duties, with a restriction of no home visits. She used a sit/stand desk. She was filling in for a co-worker, whose maternity leave period ended on 31 December 2019.
Dr Wallace opined that there was no objective medical evidence that the applicant suffered any injury at her lumbar spine on 23 March 2017. She did not complain of any symptoms to Mr Parle on 26 June 2017, nor to him at the time of his previous review. Her lumbar spine condition was unrelated to the work incident.
The applicant had reached maximum medical improvement with respect to the injury to her ankles. Dr Wallace assessed 8% whole person impairment (WPI) as a result of those injuries. The work incident of 23 March 2017 was not a substantial contributing factor to the subsequent need for bilateral knee surgery.
Dr Wallace again reported on 10 February 2022.
Dr Wallace opined that there was no causal connection between the applicant’s work injury and her lumbar spinal condition. If she had suffered a significant lumbar spinal injury at the time of the incident, she would have complained of symptoms at the time.
Over the last 20 years, the applicant had worked in drug and alcohol work and community health work. This would not have involved repetitive bending, lifting, or twisting. She had undergone no investigations of her lumbar spine. It was highly likely that, at 63, she was suffering from multi-level age related degenerative lumbar spondylosis, which was the cause of her symptoms.
As the applicant had worked in an outpatient setting for 25 years, the nature and conditions of her employment were not the main contributing factor to her lumbar spinal condition. “Certainly”, her employment with ICMH was not a substantial contributing factor to her lumbar spinal condition.
Dr Wallace opined that the applicant’s employment was not the main contributing factor to the contraction of a disease at the lumbar spine, or the aggravation, acceleration, exacerbation, or deterioration of her pre-existing lumbar spinal condition. The nature and conditions of her employment in an outpatient setting over the last 25 years was not consistent with being the cause of any significant lumbar spinal pathology.
Dr Wallace further opined that there was no causative mechanism whereby the applicant’s bilateral knee pathology would have consequentially caused an injury at her lumbar spine. The two pathologies were separate and unrelated.
Dr Wallace was unable to comment on the applicant’s work capacity or treatment needs, as he had not reviewed her since November 2019.

Dr James Bodel – orthopaedic surgeon

Dr Bodel was qualified by the applicant and reported first on 30 July 2019.
Dr Bodel recorded a consistent history of the mechanism of the injury. He summarised the applicant’s injuries as being to the left buttock; left thigh; both knees; both feet; and both ankles.
The applicant had had bilateral knee pain associated with arthritis in the lateral compartment of each knee, and the left was always worse. She was also aware that she had some midfoot arthritis but had had no previous problems with the ankles.
Dr Bodel noted the applicant’s treatment. She tried to continue working and became the “duty clinician” for about six months. Her knees, ankles and feet were not settling. She reduced her hours and took time off. Her workplace insisted she consult another GP.
The applicant then returned to modified duties, and eventually to full time work, although she was struggling because of pain. She returned to visitation work.
The applicant’s knee, foot, and ankle pain were getting worse. She took six months LSL and had bilateral TKR. Dr Fritsch, who performed the surgery, had seen her previously, told her she should try to tolerate the pain as long as she could, and return for treatment only when it was unbearable.
Dr Bodel recorded that the applicant was still at the workplace but had been struggling due to industrial issues with regard to her “substantive employment”. She was doing relief work for the Emergency Health Line but had been advised that her position would not be available after 31 December 2019, when she would be retired medically unfit. She was concerned about this and did not want to go.
The applicant’s medical history included an injury to her left knee when she was sitting at “The Lion King”. As she got up, her knee became painful and swollen. She was seen by Dr S P Tan and had a knee arthroscope, which was very helpful. She completely recovered, and her knees were functioning well, although she was aware she had arthritic change, and they did not cause any problems for at least 10 years until this fall. She had back pain in the 1980s, which had resolved.
Dr Bodel listed the applicant’s complaints as pain in the lower back; pain in the left buttock; pain in the upper left thigh; aggravation of pain by prolonged sitting or bending, twisting, or lifting; improvement since the TKR but she could not kneel, squat, or climb; pain in the midfoot on both sides, and her feet were “deformed”; and painful clicking sensation and swelling over the front of both ankles.
Dr Bodel agreed with Dr Wallace “in general terms” that the applicant was able to do her pre-injury style of work. She may have some difficulty with the required driving, and certainly would not be able to kneel to render CPR, which Dr Wallace did not appear to have addressed. Dr Keller also did not specifically address this. Dr Bodel agreed the applicant was fit for her pre-injury role, although clearly it would be inappropriate for her to do CPR, which she was never required to do in the past.
Dr Bodel reported that the applicant was clearly capable of work and very keen to work. It was “a pity, medically”, that she could not be accommodated in modified work duties for which she had appropriate levels of physical fitness and training. She felt her current role in the call centre was appropriate, and she could do that indefinitely.
Dr Bodel opined that the applicant suffered injury to her lower back, left buttock, left thigh, both knees, both feet and ankles on 23 March 2017.
The applicant had suffered an aggravation, acceleration, exacerbation and deterioration of longstanding degenerative change in both knees, and in the midtarsal, arthritic change that was present on the scans he had seen.
The applicant had also suffered very significant soft tissue injuries to the ankles, with an avulsion fracture from the tip of the medial malleolus in the left ankle, and extensive tendonosis in the extensor tendons over the front of the ankle joints on both sides. She had also suffered further aggravation of the arthritic change in the midtarsal region. All of this occurred as a result of the aggravation, acceleration, exacerbation and deterioration of the feet, ankle and knees caused by the fall.
Dr Bodel opined that the “injury” consisted of two parts.
There was the physical or frank injury that involved the ankle joints and soft tissues at the front of the ankle, and the aggravation, acceleration, exacerbation and deterioration of an existing degenerative condition involving both knees, particularly in the lateral compartments and the midtarsal region of both feet. In spite of the pre-existing pathology, the applicant had been coping with her normal duties until the fall, and since then she had struggled with all aspects of her original role.
Dr Bodel opined that the applicant’s work was a substantial contributing factor to the frank injury, and the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of the disease process. The injury had brought forward the timing as to when the knee replacements were required.
Dr Bodel assessed the applicant with 33% WPI, including 7% permanent impairment as a result of injury to her lumbar spine; and 15% permanent impairment as a result of injury to each of the right lower extremity and the left lower extremity.
Dr Bodel next reported on 8 September 2020.
Dr Bodel referred to the dispute notice dated 11 December 2019. As he [understood], EML had disputed liability for “consequential injury to the back”.
Dr Wallace had opined that the applicant’s injuries were a simple capsular strain of the left hip, and soft tissue injuries to both knees, all of which had resolved. He did not accept the concept of injury being the aggravation, acceleration, exacerbation and deterioration of underlying disease process, such as the arthritic change in the knees, which led to the knee replacement.
In addressing the issue of causation, Dr Bodel indicated that the applicant had been an RN since the late 1970s or early 1980s. She worked in general nursing for about 20 years, then in drug and alcohol work and community mental health work.
Dr Bodel opined that the pathology in the applicant’s knees was longstanding degenerative change. Work over nearly 40 years as an RN had caused aggravation, acceleration, exacerbation and deterioration of that disease process in the knees and consequentially in the back.
Dr Bodel again opined that work was a substantial contributing factor, and indeed the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of the applicant’s knees, ankles and back, based on the medical evidence he had observed. He was satisfied the back injury was a consequential injury caused by the injury in the fall on
23 March 2017.
Dr Bodel’s next report is dated 26 July 2021.
The applicant advised that she was still employed and had a WorkCover certificate indicating no current capacity for work.
Dr Bodel recorded a history of the injury that was consistent with his previous reports. The applicant then had bilateral knee pain, bilateral foot and ankle pain; and X-rays of her knee showed some arthritic change in the lateral compartment of each knee, which had been previously asymptomatic. No fracture was identified in the ankles or knees.
Since last being seen, the applicant had developed increasing lower back and hip pain. She had pain and pins and needles radiating down both legs and the whole of the lower back and both legs were troublesome. Her feet and ankles were still a problem.
The applicant continued to have industrial issues and psychological issues as a result of “threats” from her NUM and other managers. In February 2020, this matter was taken to the Industrial Relations Commission. The disputes continued and she was told in August 2020 that her position remained safe, and she was not going to be terminated. She had been provided with a sit/stand desk that suited her well.
The area where the applicant worked was poorly ventilated and without air-conditioning. There was a series of hot days in October and November 2020, and she began to struggle. She came under the care of a cardiologist and was told this was “heat related stress”.
The applicant took SL early in 2021 but her back pain deteriorated. There were still industrial issues. She needed the sit/stand desk, a special chair, and headset, and this was not provided. She was then put off work because of increasing back pain and was still off work because of that. The room where she felt reasonably comfortable was taken from her and was being given to a doctor.
A new human resources RTW coordinator became more supportive. The applicant was reinstated on 14 March 2021 with reasonable adjustments to her workstation. She was in a different room. She continued to have pain in both feet and her left hip; back pain and knee pain seemed to settle. She purchased her own headset, which helped a little. She had been off work subsequently because of increasing pain, mainly increasing back and leg pain.
The applicant had been to the GP, had rest from work, and settled. She had used most of her leave. She did not see herself being able to return to work “because of the industrial issue she finds herself in”.

The applicant had lower back pain and pins and needles in both feet. This was aggravated by sitting for too long. She had searched for other work within the Illawarra Area Health District and was offered work in the vaccination centre. She thought she had the position but it was later denied her, and she was not offered a secondment there.
The applicant had been given a certificate indicating no capacity for work. She was the only income earner and found this very distressing. She felt there was work for her with some consideration from her employer, but that was not forthcoming. Her physical injuries persisted, and the stress was becoming unbearable. She indicated that her husband was on workers compensation and could not go back to work, and they had a mortgage.
Dr Bodel recorded that the applicant had a constant dull aching pain across the lower back, left buttock and hamstrings; prolonged sitting, bending, twisting or lifting aggravated the pain; she needed to be able to change position frequently and work with a sit/stand desk; her knees were functioning reasonably well, although she still had clicking in the right; she had pain in both feet and “deformity” of the dorsum of both feet, since the fall; and painful clicking sensation in both ankles.
Dr Bodel opined that the applicant’s ankle and foot pain was due to arthritic change that had been aggravated by the fall. Her back pain was musculoskeletal pain and degenerative disc disease, aggravated by the fall and her abnormal gait.
The applicant was incapacitated for work in accordance with the certificate provided. Her prospects of getting back to work were very poor. Her ability to work had been improved by successful knee replacement, although she still had a lot of pain elsewhere. There also appeared to be significant industrial issues.
Dr Bodel opined that the applicant theoretically had capacity for work. It was very limited because of the totality of her injuries. They included pathology that was being aggravated, exacerbated, accelerated and deteriorated by work. At the most, she would be able to work four to five hours a day, three days a week, in permanently modified duties, where she could sit or stand and change position frequently. From a functional point of view, Dr Bodel strongly suspected she was totally and permanently incapacitated for work for which she had appropriate levels of education, physical fitness, and training.
Dr Bodel next reported on 1 December 2021.
He referred to a CT scan, dated 6 April 2017, of the applicant’s left ankle, which indicated a tiny chip fracture of the tip of the lateral malleolus and the medial malleolus. This did not alter his assessment of WPI.
The applicant’s solicitor had advised that her husband was not on workers compensation, had not been able to return to work, and did not have a wage. The applicant wanted to continue at work and her injuries had prevented her doing so.

SUBMISSIONS

Counsel’s submissions have been recorded, so I will summarise them briefly.

Applicant

The applicant relied for forensic support largely on Dr Bodel’s evidence.
The applicant described a frank injury on 23 March 2017. She had pre-existing and symptomatic conditions in both knees. The frank event aggravated the condition, and it was also contributed to by the nature of her work over the years.
The applicant submitted there is no dispute that the event occurred. The respondent conceded that she injured her ankles. She tells me that she fell on her knees. This was an energetic, violent event, against degenerative changes.
The applicant submitted there was an abatement of symptoms before the injury. She had cancelled knee replacement surgery as her knees were much better. There is a contemporaneous history of complaints of bilateral knee symptoms. She elected to undertake the surgery she had decided not to have.
The applicant submitted that Dr Bodel opined that the injury accelerated the need for surgery. It obviously made a material contribution to the need for surgery. This is significant because she claims the expenses incurred for the knee replacement, and Dr Bodel has taken it into account in his assessment of impairment.
The applicant referred to her statements. She has had pain in her left hip and back from the time of the injury. Her medical case is supported by Dr Bodel.
Dr Bodel recorded the applicant’s medical history, including her knee symptoms. He opined that she had sustained aggravation, acceleration, exacerbation and deterioration of degenerative change in her knees and feet. She had been functioning well before the fall.
The applicant referred to Dr Bodel’s evidence regarding her capacity for work. She submitted it is the domain of the orthopaedic specialist to tell the reader what functional capacity she had. It is a matter for the tribunal to decide how this translates to economic capacity, referring to s 32A of the 1987 Act.
The applicant submitted that, despite her injury, she continued to attempt to participate in the workplace from March 2017 to May 2021, to a greater or lesser extent, with help from the employer to the point where it, which has an obligation to provide suitable employment, ran out of options. The provision of permanently modified duties by an employer does not reflect its availability once the employer with that obligation has no further obligation. She submitted I would assess her as having no capacity for work as at May 2021.
The applicant submitted that Dr Wallace appears to have recorded the same complaints as Dr Bodel; and I would accept that there was an injury to both knees. Dr Wallace’s opinion is not sufficient contradiction to warrant anything but a referral to a MA with respect to injury to her knees.
The applicant submitted it was difficult to discern what Dr Wallace meant by there being no objective medical evidence of injury to her lumbar spine. He may have meant there was no contemporary medical evidence. There were X-rays and CT scans.
The applicant submitted that Dr Wallace has not engaged with or rebutted Dr Bodel’s evidence that the injury brought forward the need for knee replacement. Injury has been established by her own report, Dr Bodel, and to some extent Dr Wallace. This warrants referral to a MA; makes good the claim for past medical expenses; and contribution to support for incapacity and entitlement to weekly benefits. She seeks compensation for the period of LSL taken for the knee surgery.
In reply to the respondent, which renewed its complaint about the pleadings, the applicant submitted that it had no difficulty issuing s 78 notices, disputing everything, including s 4(b)(i) and s 4(b)(ii) [of the 1987 Act] injuries. Its submission was technical and had no substance.
The applicant submitted that I would pay no attention to speculation about the driveway. This was not before me, or raised in the dispute notices, and was just a distraction. It was speculative, and there were also speculative submissions about what was happening at home. This is not a matter for speculation, but evidence, which the respondent could have provided.
The applicant submitted there was no reason why I would not accept her at face value. She had every desire and motivation to maintain her employment, which is generally seen as a positive. It was insinuated, but not said, that Dr Mackie was some sort of cypher. On the face of it, he was exercising his skill and judgment as a medical practitioner, and the applicant submitted I would pay no heed to the insinuation.

Respondent

The respondent submitted that there is no reference to the disease provisions in the pleadings. The injury was pleaded as a personal injury, but “throws in ‘nature and conditions’”, without specifying the period. It is not clear what this means.
The respondent submitted that the specific event in 2017 caused injury to the applicant’s ankles. Her GP provided advice before 2017 that she required knee replacement surgery. I could not be satisfied that the event was the main cause of aggravation and brought forward the need for surgery.
The respondent submitted that it was unable to ascertain a steep driveway at the address where the injury is said to have occurred. It referred to the applicant’s description of the injury and submitted she may have lost her footing and come into a kneeling position. Her subjective description of “horrendous” pain should be considered in the light of objective evidence.
As regards Dr Wallace’s evidence, the respondent submitted he probably meant there was no radiological evidence showing pathology in the applicant’s back. The first reference to back pain was many months after the injury.
The respondent submitted that I could not accept some of the things the applicant said, such as her evidence that walking on uneven surfaces caused pain in her ankles, back of the left thigh, and buttocks; and that the symptoms in her knees increased, constantly locking, with much more pain, increased instability and altered gait.
The respondent submitted that it must be remembered that the applicant had symptomatic OA changes in her knees, and surgery was contemplated. If there was bruising to her knee, that would be a matter for an MA. It submitted that the applicant’s medical evidence was lacking. There is a pointer to an “emotional” response, but none is pleaded.
The respondent submitted that it supported the applicant’s RTW, and was positive, but the applicant interpreted its actions in a negative way.
The respondent submitted that the applicant had stated that her home life was being affected by pain but did not say how; and social factors were the biggest drivers of pain. More information about her husband and son, and the matters she raised about what happened at home, would have been useful.
The respondent submitted that the applicant booked LSL and had TKR at her own expense. She would be expected to get some benefit from private health insurance. She took responsibility and wanted to take her knees “out of the equation”. She told her orthopaedic surgeon her knees were not part of her workers compensation injury. The respondent submitted she would benefit by keeping to her word.
The respondent submitted that the applicant’s surgeon was not really aware of the extent of the injury, and it was not discussed in detail. There was some discussion of a fall versus multiple falls.
The respondent submitted that a search of Google maps shows no steep slope. I was invited to search Google maps. The respondent conceded injury to the applicant’s ankles. She slipped and fell, it was “as mundane as that”. The respondent submitted I should not be distracted by subjective matters. The GPs’ records are objective evidence.
I have had no regard to the submission about the steepness, or otherwise, of the slope where the applicant fell, based apparently on a search by the respondent’s counsel of Google maps.
The submission is not evidence, there is no copy of the map in evidence, and I do not feel it is either necessary or appropriate that I carry out my own search. The injury occurred almost six years ago, so any current search would be of no, or limited relevance, and it has never been disputed that the applicant fell on 23 March 2017 or suggested previously that the angle of the slope where she fell was relevant.
The respondent submitted that, for the period when no claim was made, the applicant was in suitable employment with no economic loss. After the knee replacements, which were said to be successful, she improved, referring to Dr Bodel’s evidence. There was no explanation of why things had changed, except that she was upset about industrial issues. It is not clear what they may be. She was highly motivated to maintain her employment.
The respondent submitted that the GP recorded an abrasion on the applicant’s left knee, but none on the other knee. It is more likely than not that Dr Wallace’s opinion that she had a soft tissue injury, from which she had recovered, was closer to the truth.
The respondent submitted that the applicant was not totally incapacitated. She had been deployed successfully. There was no loss and no change in circumstances to the present time. She was fit for modified employment to the extent that Dr Bodel reported. At various times she was fit for full time work, which is consistent with the ability to work full hours, not 15 hours, as suggested by Dr Bodel.
As regards the symptoms in the applicant’s lumbar spine, the respondent submitted that I would not be satisfied they were anything other than the complaints of a person having to make adjustments because of an ankle injury and weighing 100kg. There is no radiological evidence of pathology in the lumbar spine. It would not be unusual to have back pain on exertion, which may be exacerbated by the applicant’s injured ankles. She had not shown any connection with employment.
The respondent submitted that the applicant said she had an altered gait, which was not surprising, but gave no detail or information of what that did to other body parts; and I could not be satisfied that there was a material contribution between the ankle injury and the back pain.
The respondent submitted that, apart from a couple of redactions in the GPs’ notes, there may be matters that the applicant did not desire anyone to see. There was an assumption that she decided what I will or won’t see. There is an emotional element, which is the “tip of the iceberg” and not pleaded.
The respondent submitted that Dr Wallace took a sensible view, which is “all that’s left”. It referred to the GP’s record on 5 April 2017, which referred to the left knee only. The only other reference is to a flareup to pre-existing OA.
The respondent submitted it is hard to understand the extent of the applicant’s ability and obstacles to return to work. It referred to the redacted record, including “new big drama”, and the complication of cardiac issues. The applicant’s return to normal duties in March 2021 is not consistent with her being functionally totally incapacitated.
The respondent submitted I would accept Dr Wallace’s opinion. He reasonably recognised that the applicant suffered bilateral ankle injuries. She had a major pre-existing condition of her knees beforehand. There is no corroboration with respect to any actual injury to her back, apart from complaint of aching pain at L4/5. This was relieved by changing position. The applicant had successfully adapted herself by continuing full time suitable duties. She had significant capacity after recovery from the injury, notwithstanding a long history of work in nursing and problems in her ankles.
The respondent submitted that Dr Mackie’s certificates varied widely, but he would write certificates at the request of the applicant that gave her capacity to work for 40 hours per week with restrictions.
The respondent submitted that it concedes that the applicant sustained injury to both ankles and her left knee, but not to her right knee.

SUMMARY

Injury

The applicant claims to have sustained frank injuries to her back, left buttock, left thigh, both knees, and both feet and ankles on 23 March 2017, when she fell down a driveway while visiting a patient.
The applicant also claims that the nature and conditions of her employment, “in combination with” the injury on 23 March 2017, caused the aggravation, acceleration, exacerbation and deterioration of degenerative change in her knees, feet, ankles and back. I will refer for convenience to “aggravation”.
Finally, the applicant claims that her back and left hip were further aggravated by her altered gait and conditions of employment after the injury; and that the “event” in 2017 caused a ligamentous change to her ankles.
The respondent does not dispute that on 23 March 2017, the applicant sustained injury to her left and right ankles. It does dispute that she has sustained injury to her ankles as a result of the nature and conditions of her employment.
Having stated at the commencement of the hearing that it disputed that the applicant had injured her left and right knees on 23 March 2017, the respondent then submitted that it conceded that she had sustained injury to her left knee, but not to her right knee.
The respondent disputes that the applicant sustained injury to her lumbar spine, left and right knees, or left hip, as a result of injury on 23 March 2017, a consequential condition as a result of injury on 23 March 2017, or a “disease injury”.
Given the respondent’s conflicting position on the issue of whether the applicant sustained injury to her left knee on 23 March 2017, I will address that matter, as well as whether she sustained injury to her right knee on that date.
I am satisfied that the applicant sustained injury to both her left knee and her right knee on 23 March 2017.
The applicant initially described having landed awkwardly with both feet under her buttocks. That would as a matter of common sense mean that she was on her knees.
In her statement, the applicant described the mechanism of injury as her shoes suddenly gripping on the driveway, propelling her knees and body forward over the top of her toes. Her knees hit the ground. She slid down the driveway, sustaining abrasions to her knees.
The INI completed by the respondent recorded that the applicant’s injuries on 23 March 2017 included “pain and bruising to knees”.
Dr Mackie recorded on 23 March 2017 that the applicant had fallen that day, and she “went down onto both knees”, more heavily on the left. There was an abrasion on her left knee. He requested X-rays of both knees.
The respondent referred to Dr Perriment’s notation on 5 April 2017 that the applicant had injured her left knee in the fall, but that submission ignores Dr Mackie’s contemporaneous record, on the day of the injury, that she had fallen on both knees.
There is no dispute that the applicant sustained injury to her left and right ankles on
23 March 2017. The respondent disputes that she has sustained injury to her ankles as a result of the nature and conditions of her employment.
I am not satisfied that the applicant has sustained injury to her knees, feet, ankles or left hip as a result of the nature and conditions of her employment. Her evidence is that she returned to work for a period after the injury, but then decided she required bilateral TKR. Her ankles were becoming inflamed and swelling “again”, but this appears to have been due to the effects of the frank injury. She had, in her words, “plateaued”.
When the applicant returned to work in June 2018, she was working in an office, with no face to face contact with “consumers”. While she stated that her feet and ankles continued to deteriorate, there is no evidence of activities at work that are said to have contributed to the deterioration.
Dr Bodel recorded a history in July 2019 that the applicant felt her work in the call centre was appropriate, and she could do it indefinitely. By June 2020, her substantive position was “suitable for disabled or abled clinician”. The medical evidence does not support a claim that the nature and conditions of her employment resulted in injury to her knees, feet, ankles, or left hip.
There will therefore be an award for the respondent in respect of the claim for injury to the applicant’s knees, feet, ankles or left hip as a result of the nature and conditions of her employment.
The evidence regarding the alleged injury to the applicant’s back is contradictory. I do not accept that she sustained injury to her back on 23 March 2017.
There is no mention in the INI, including her detailed addendum, of injury to the applicant’s back. The applicant did not say in her statement dated 9 November 2020 that she injured her back on 23 March 2017, despite a detailed and somewhat dramatic account of the event.
The applicant also gave evidence in this statement about the effects of the injury. She has referred to altered gait, and her lower back pain “flaring up” with too much standing or sitting, but not to any injury to her back on 23 March 2017. She described the pain in her lower back as being associated with sitting or standing for periods, driving, carrying things “etc”.

The applicant gave evidence in her statement dated 17 August 2022 that she had had symptoms that included lower back pain since the accident, and that the force of her buttocks hitting her heels caused her to suffer pain in her hip and then back ever since. The pain was much worse on the right side, which did not mean the “back issue” and right ankle were not causing pain, but the left sided pain was “excruciating”.
This statement was made over five years after the injury and is not consistent with the contemporaneous evidence of either the applicant or her GPs.
None of the GPs consulted by the applicant on and from 23 March 2017 recorded that she had injured her back on that date. None requested any investigations of her back, or physiotherapy to her back. None of the numerous COCs issued referred to injury to her back on 23 March 2017.
Dr Mackie recorded in COCs from 4 February 2021 to 20 May 2021 restrictions that included working at a flexible height desk; having access to the applicant’s personal headset; and having an adjustable chair, but there is no explanation of the reasons for these restrictions, and no reference to injury to the back.
The first entry after the injury regarding back pain appears to have been on 3 August 2018, when Dr Mackie recorded that it was exacerbated by the applicant’s sedentary work. He has not referred to any injury to her back on 23 March 2017.
Dr Mackie recorded on 18 October 2019 that the applicant had numbness that seemed to be related to her position sitting at work.
Dr Tomson recorded on 17 January 2021 that the applicant had a history of chronic back pain “on and off”. The applicant requested that her medical certificate not refer to back pain. There is no explanation for this. If the applicant had injured her back on 23 March 2017, there seems to be no reason why she would not tell Dr Tomson this and request that it be recorded on the certificate.
While Dr Mackie reported on 13 May 2021 that the applicant’s fall had caused problems with her back, as well as her knees and ankles, that is not borne out by any contemporaneous evidence, including his own.
Dr Sinclair reported in September 2017 that the applicant had had no back problems for the last 20 years. He did not record any history of injury to her back on 23 March 2017.
When Dr Keller examined the applicant in April 2018, he recorded no history of injury to her back on 23 March 2017.
Dr Wallace reported in June 2018 no history of injury to the applicant’s back on
23 March 2017.
Dr Bodel’s report of 30 July 2019 is inconsistent. He recorded a complaint of lower back pain but did not include injury to the applicant’s back in his summary of her injuries and recorded no history of injury to her back on 23 March 2017. He then concluded that she suffered injury to her lower back, left buttock, left thigh, both feet and ankles on 23 March 2017.
Dr Bodel’s opinion that the applicant sustained injury to her back on 23 March 2017 is simply not supported by the contemporaneous evidence, including her own evidence.
Turning now to the applicant’s “nature and conditions” claim with respect to injury to her back, it appears to rely on her work activities before, and “in combination with” the injury on 23 March 2017; and after she returned to work following the injury.
The applicant has given an account of the duties of a nurse dating back to the 1970s. She described them as having contributed to “repetitive actions that contribute to wear and tear”. It is not my intention to refer to them all.
The applicant has referred to activities involving pushing, pulling and carrying; lifting; patient transfer; moving beds with no directional wheels; moving “huge” oxygen cylinders; manoeuvring “huge” water chairs; and multiple lifts of patients into showers.
The applicant stated that in the late 1990s, work health and safety improved “dramatically”, but most nurses went to specialty fields when they were no longer able to lift.
I accept that the work of nurses in, at least, the 1970s and 1980s, was often physical and arduous. However, the applicant has not said that she sustained any injury to her back during this period, or that her change from working in a hospital setting to work in what may be referred to as community health, was prompted by any issues with her back.
The applicant herself has given no evidence as to when the nature of her employment changed, but it would appear to have been in or about the late 1990s or early 2000s, given that Dr Wallace recorded in 2022 that she had worked in drug and alcohol work and community health work for the last 20 years; and Dr Bodel recorded in 2019 that she worked in general nursing for about 20 years, having been an RN since the late 1970s or early 1980s. She has given evidence that she qualified as an RN in November 1978.
The applicant had therefore not been involved in the type of activity she has described in her evidence as occurring in the 1970s and 1980s for approximately 20 years when she sustained the injury on 23 March 2017. Dr Bodel recorded in 2019 that she had had back pain, which resolved, in the 1980s.
The evidence I have referred to in respect of the applicant’s claim to have sustained a frank injury to her back also does not support a claim that she sustained injury to her back as a result of the nature and conditions of her employment prior to 23 March 2017.
The applicant relied largely on Dr Bodel’s evidence. As I have said, it is inconsistent. He has not provided any reasoned support for a claim that she sustained injury as a result of the nature and conditions of her employment prior to and “in combination with” the injury on
23 March 2017.
Having opined that the applicant injured her back on 23 March 2017, Dr Bodel opined in his report dated 8 September 2020 that she had sustained a consequential injury [sic] to her back, caused by the fall on 23 March 2017.
Dr Bodel has not explained his reasoning, or why he had not previously expressed the opinion that the applicant had a consequential condition, bearing in mind his previous report was provided in July 2019, over two years after the injury, when it may be expected a consequential condition, had it existed, would have become evident. Dr Bodel has not explained how, if the applicant had a consequential condition of her back, it resulted from the injury on 23 March 2017.
Finally, the applicant claims that her back was “further” aggravated by her altered gait and conditions of employment after the injury.
In his report dated 26 July 2021, Dr Bodel opined that the applicant’s back pain was musculoskeletal and degenerative disc disease, aggravated by the fall and her abnormal gait. Once again, he has not explained his reasoning, including how her gait had been altered and how that resulted in back pain. He has referred to the accommodations she required, and which, when provided, apparently assisted her to remain at work.
The evidence I have referred to regarding the applicant’s “nature and conditions” claim with respect to her knees, ankles and left hip is also applicable to her claim for injury to her back due to the nature and conditions of employment.
In June 2019, Dr Mackie reported that the applicant’s duties were not aggravating her condition.
I accept that the applicant has at times experienced back pain after her return to work, which may have been related to changes in her posture due to her injuries, or the position of her desk. However, there is a distinction between pain and injury. In Castro v State Transit Authority (NSW) [2000] NSWCC 12 Armitage CCJ held that what is required to constitute “injury” is a “sudden or identifiable pathological change”. That is not what occurred in this case.
I prefer Dr Wallace’s evidence, which I regard as logical and well-reasoned, with respect to the claim that the applicant has sustained injury to her back as a result of the “nature and conditions” of her employment.
It follows that I do not accept that the applicant has met her onus in establishing injury to her back, and there will be an award for the respondent in respect of the claim for injury to her back.

Medical treatment

The claim for past medical treatment is pleaded as “Consultations with treating GP, specialists and knee replacement surgery. Pharmaceuticals and travel”. The claim is for $65,097.16.
It is assumed that these expenses relate to the TKR surgery, liability for which has been disputed, which was said to be in issue, and which was the subject of submissions, and I have approached the issue on that basis.
In the matter of Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), Deputy President Roche said at [57]:
“…a condition can have multiple causes (Migge v Wormald Bros Industries Ltd[1]; Pyrmont Publishing Co Pty Ltd v Peters[2]; Cluff v Dorahy Bros (Wholesale) Pty Ltd[3]; ACQ Pty Ltd v Cook[4]. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates[5]), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[6]). 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[7]).”
[1] (1973) 47 ALJR 236.
[2] (1972) 46 WCR 27.
[3] (1979) 53 WCR 167.
[4] [2009] HCA 28; 237 CLR 656.
[5] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[6] [2014] NSWWCCPD 18 at [40]-[55].
[7] (1996) 12 NSWCCR 716.
The applicant had longstanding degenerative changes in both knees, pre-dating the injury on 23 March 2017. Her evidence is that she disclosed during the recruitment for employment with the respondent that she had been told she was a candidate for bilateral TKRs, but she was not at the stage of having the surgery.
The applicant was consulting Dr Mackie about her right knee in October and November 2016. She was to undergo bilateral TKR on 20 December 2016. However, she cancelled that surgery and on 5 January 2017, Dr Mackie recorded that her knees were much better. Although she has given no evidence about the reason for cancelling the surgery, it is reasonable to infer that her condition had improved, and she believed the surgery was at that stage not necessary.
The injury, when I have determined that the applicant injured both knees, occurred on
23 March 2017. The applicant’s evidence is that the symptoms in her knees increased. They were constantly locking, and she had much more pain, increased instability, and altered gait. Her knees had not recovered from the fall, and she was losing strength and mobility.
This is evidence of a deterioration in the condition of the applicant’s knees immediately after the fall. She accepted what she was told by her GP and NUM that her arthritis was not part of her workers compensation injury, and told her treating specialist this, but decided that she would now undergo the surgery to her knees.
Dr Fritsch reported on 24 October 2017 that the applicant and her family had previously decided to hold off on having surgery but she was “now back at a point where that’s the only option”. She was having a lot of trouble, the details of which he has recorded. The applicant’s evidence is that she had not had “falls”, but only the one fall. I do not believe this error in
Dr Fritsch’s history is material. What is material is that, between December 2016, when the applicant decided to hold off on having the surgery, and October 2017, when she decided to undergo it, she had a fall onto her knees and a subsequent increase in her symptoms.
Dr Bodel opined that the injury had brought forward the timing of the TKRs. Dr Wallace opined that the injury on 23 March 2017 was not a substantial contributing factor to the need for surgery. As Roche DP held in Murphy, however, that is not the appropriate test to be applied.
Dr Bodel is the only doctor to have addressed, albeit obliquely, whether the injury to the applicant’s knees on 23 March 2017 materially contributed to the need for surgery.
The respondent did not submit that the surgery was not appropriate treatment for the applicant’s condition, and there is no medical evidence that suggests it was not an appropriate form of treatment. In those circumstances, I am satisfied that the treatment was appropriate.
Having considered the applicant’s evidence, and that of her GP, Dr Fritsch, and Dr Bodel, I am satisfied, applying the “commonsense test”, that the bilateral TKR surgery was reasonably necessary medical treatment as a result of the injury on 23 March 2017.
There will accordingly be an award for the applicant for the costs of bilateral TKR surgery.
The applicant’s claim for weekly benefits remains to be determined. In my view, that claim should await the outcome of the medical dispute, which is to be referred to a MA.
Roche DP said in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [269], when considering the prospect of inconsistency between an award of weekly benefits by an arbitrator and an award of permanent impairment compensation as a result of an assessment by an Approved Medical Specialist (AMS);
“The uncertainty and delay that will result from the above can be reduced if, when there is a claim for weekly compensation and lump sum compensation, and the Arbitrator finds that the worker has suffered a s 4 injury, the matter is referred to an AMS for assessment of the whole person impairment that has resulted from that injury before the Arbitrator makes final orders. That is far from ideal, because it delays the final resolution of the claim, but it is better than forcing a worker to make a reconsideration application in the event that the MAC [Medical Assessment Certificate] is inconsistent with the Arbitrator’s findings.”
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 98

15 March 2023