Bdeir v Zoom Recruitment Industrial NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bdeir v Zoom Recruitment Industrial NSW Pty Ltd [2025] NSWPIC 83
APPLICANT:	Sam Bdeir
RESPONDENT:	Zoom Recruitment Industrial NSW Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	24 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; aggravation injury; section 4(b)(ii); Kelly v Western Institute NSW TAFE Commission; Ariton Mitic v Rail Corporation of NSW; Mylonas v The Star Pty Ltd; Egan v Woolworths Limited; Meaney v Office of Environment and Heritage – National Parks and Wildlife Service; Wayne Robinson v Pybar Mining Services Pty Ltd; whether possible view probable; Woolworths Limited v Christopher-Coates; material contribution to need for surgery; section 60; Murphy v Allity Management Services Pty Limited; Taxis Combined Services (Victoria) Pty Limited v Schokman; Held – the applicant sustained an aggravation injury to his right hip; aggravation injury to the applicant’s right hip made a material contribution to the need for right hip replacement surgery; respondent is to meet the costs of and incidental to the right hip replacement surgery in accordance with section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is granted leave in accordance with r 67(4) of the Personal Injury Commission Rules 2021(the PIC Rules), to introduce documents attached to Applications to Lodge Additional Documents (ALAD) dated 16 January 2025 and 24 February 2025. 2. The applicant sustained an aggravation injury to his right hip on 29 November 2023 in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) 3. The 29 November 2023 aggravation injury to the applicant’s right hip made a material contribution to the need for right hip replacement surgery. 4. The respondent is to meet the costs of and incidental to the right hip replacement surgery in accordance with s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant was employed by the respondent to provide labour on a labour hire basis to clients of the respondent.
The applicant alleges that, as a result of the nature and conditions of his employment with the respondent, he aggravated an underlying condition in his right hip resulting in the need for right total hip replacement surgery.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an aggravation injury to his right hip in the course of or arising out of his employment with the respondent; and
(b) if he did sustain such an injury, whether the applicant’s employment made a material contribution to the need for right total hip replacement surgery such that the proposed surgery is reasonably necessary as a result of the applicant’s employment.
During the course of the arbitration hearing, the respondent withdrew the dispute with respect to whether the proposed surgery was reasonably necessary but maintained that the need for the proposed surgery did not result from the applicant’s employment with the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing before me on
24 February 2025 by video conference. Mr Morgan of counsel appeared for the respondent instructed by Mr Kardum of Turner Freeman Lawyers. The respondent was represented by Mr Hart of counsel instructed by Ms Nichols of Hall & Wilcox. Ms Ott of the respondent’s insurer was also in attendance.
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.
Counsel were reminded of the operation of r 67D(2) of the PIC Rules 2021.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Lodge Additional Documents dated 16 January 2025 and attachments (encompassing the respondent’s reply); and
(c)    Application to Lodge Additional Documents dated 24 January 2025.
The applicant did not object to the introduction of either bundle of additional documents and I granted the respondent leave to introduce the documents, being satisfied it was necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings in accordance with r 67C(4) of the PIC Rules 2021.
It was raised by the applicant that notices issued by the respondent pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) reference a report of Associate Professor Courtenay dated 5 February 2024. That report is not in evidence before the Personal Injury Commission (Commission), and it was accepted by the parties in submissions that the respondent was not entitled to rely on it where they have relied on the opinions of Dr Diebold. I have drawn no inference in this regard.

Oral evidence

There was no application to adduce oral evidence or to cross-examine any witnesses.

FINDINGS AND REASONS

The submissions of the parties were recorded however the principal arguments are summarised below and considered in these reasons.

Did the applicant sustain an aggravation injury to his right hip?

Applicant’s submissions

The applicant submitted that, from all the medical evidence, the applicant’s statement and his CV, I would accept that over his working life the applicant has been involved in heavy physical work which he was able to do without problems until he reached a position where he could no longer cope with the work while working for the respondent.
Subsequent radiological investigations demonstrated a congenital abnormality in both hips which together with the stress his employment activities put on the hip joint contributed to his current presentation and the need for surgery.
The applicant submitted that I would be satisfied that the applicant’s employment was the material contributing factor to an aggravation of the disease condition in the applicant’s right hip and I would find for the applicant on the issue of injury.

Respondent’s submissions

The respondent submitted that the applicant’s claim cannot be simply contextualised on a history of heavy work over a number of years and submitted focus must be given to what it was about the work that gave rise to the hip condition.
The respondent submitted I ought to put no weight on the opinions of Dr Wernecke and
Dr Bodel because the history of crouching duties being performed for years, which they relied on in reaching their opinions, is incorrect.
The respondent also submitted that the question of injury and the need for surgery are separate issues and a finding of an aggravation injury does not mean that the need for the proposed surgery results from that aggravation injury.

Consideration

The applicant asserts that he sustained an injury to his right hip in the course of or arising out of his employment with the respondent, with that injury being an aggravation of an underlying condition in the right hip.
“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a)     personal injury arising out of or in the course of employment,
(b)     includes a “disease injury”, which means:
(i)     a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)    the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
….”
In Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66] Deputy President Roche said:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626).”

The construction of “main contributing factor” in s 4(b)(ii) was considered by Arbitrator Harris in Ariton Mitic v Rail Corporation of NSW (8497 of 2013, 8 April 2014) where he said:
“The opening words of the amended s 4(b)(ii) relate to the aggravation, acceleration, exacerbation or deterioration ‘in the course of employment of any disease’. In my view, those opening words therefore direct attention to the work related component of the ‘aggravation, acceleration, exacerbation or deterioration’. The following words of clause (ii) then state ‘but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’. The concluding words of clause (ii) requires an examination of whether the employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process…
In my view, the amendment to s 4(b)(ii) does not require the applicant to establish that the employment must be the main contributing factor to the overall disease process or pathology within his left knee but simply that the employment must be the main contributing factor to the injury, that is, the aggravation, acceleration, exacerbation or deterioration of such disease.”
This approach was applied by Arbitrator Rimmer in Mylonas v The Star Pty Ltd [2014] NSWWCC 174 at [151]-[166] and Arbitrator Edwards in Egan v Woolworths Limited [2014] NSWWCC 281 at [60]-[82].
In Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 (at [138]-[147]) and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248, Arbitrator Capel (as he then was) considered the construction of “main contributing factor” and concluded the word “main” to mean “chief” or “principal” (at [78]-[88]).
To succeed, the applicant needs to establish, in accordance s 4(b)(ii) of the 1987 Act,
that his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition in his right hip. His employment however only needs to be the chief or principal contributing factor to the aggravation, acceleration, exacerbation or deterioration of the condition and not to the disease process itself. The aggravation or exacerbation of the disease will have occurred when his experience of the disease is increased or intensified by an increase or intensifying of symptoms.
In a statement dated 15 November 2024 the applicant states that prior to his work injury he did not have any symptoms in his hips and his hips were “in good health,” and he was able to undertake his duties “without any adjustments or pain,” however since the work injury he has had ongoing discomfort and pain. He provides a description of his symptoms and treatment.
In a statement dated 14 March 2024 the applicant describes his intention to become a direct UPS employee by working at least 600 hours with them and that prior to his injury he had worked at least four consecutive weeks with UPS.
In a statement dated 8 December 2023, the applicant sets out his work history with the respondent including placements at:
(a)    the Australia Post Distribution Centre at Botany between 27 June 2022 and 21 July 2022 sorting light packages and letters from 20 grams to 10 kilograms;
(b)    Star Track for one shift sorting light to medium parcels;
(c)     Estee Lauder for one shift sorting very light fragrance bottles; and
(d)    Globus Viscofan as a machine operator using a printer and mopping floors;
The applicant then describes his duties at UPS (where he has worked occasionally and then weekly between 3 July 2022 and 31 October 2022 when he became a full time freight handler placed by the respondent with UPS). The applicant states that his duties involved:
“…handling freight which weighed approximately 1 kilogram – 80 kilograms. To the best of my recollection, I was lifting approximately 800-1000 boxes per shift. To do this, I was required to crouch down to enter into containers and then lift boxes that were from ground level to my shoulder height, onto a ground level conveyer belt.
…
It was quite difficult to handle this frequency of lifting, especially because the boxes were so heavy. As a result of these working conditions, on or around my first shift in the week commencing 28 November 2022, I injured myself and was diagnosed with a hernia, golfers’ elbow in my right elbow, a tear in my right forearm tendons and a tear of my superior labrum in both my hips”.
The applicant’s CV is also in evidence and discloses prior work as a customs clerk, a branch manager with Rcube Pty Ltd involved in trading precious metal commodities, a catalyst buyer, and as a share trader.
Mr Khan, a supervisor with UPS, provided a statement dated 31 May 2024 in which he described the applicant’s duties as follows at paragraphs 13 and 14:
“13. Mr Bdeir was manually unloading freight which weighed around 1kg – 20 kg, On each shift each worker would unload between 7-8 containers with another worker. These containers hold about 150-180 boxes that needed to be taken out and placed on a roller and then onto a conveyor belt. One worker takes the box out of the container and places on a roller and the other pushes the box onto the container. This reduces twisting and lifting and keeps physical fatigue to a minimum. The workers rotate the roles after emptying every container.
14. These duties involved bending and lifting but not in a confined spaces as they containers are quite large. Shifts went from 9am to 2pm and from 5:00pm to 11:00pm. There is no rush with unloading and workers are told and supervised to work at a steady pace. Most packages are light with plenty of space for workers to move around comfortably.”
Mr Weinert, operations supervisor with UPS provided a statement, also dated 31 May 2024. Paragraphs 13 and 14 of Mr Weinert’s statement are in identical terms.
I accept the applicant’s submission that only limited weight can be placed on the statement evidence of Dr Khan and Mr Miranda. While I appreciate, as submitted by the respondent, that the rules of evidence do not apply in the Commission and this results in evidence being obtained that would not be admissible in other jurisdictions the evidence must still be probative. When two witnesses attest to the same evidence the Commission cannot know which witness is responsible for the evidence nor weigh the witnesses individual accounts and recollections.
For these reasons, I only accept the evidence of Mr Khan and Mr Weinert in so far as it is consistent with the evidence of the applicant with respect to his duties, which it largely is, with the exception of Mr Khan and Mr Weinert’s evidence that the containers were not confined spaces. There are three photographs in evidence of three separate containers. Two of the containers would have required the applicant to crouch to access boxes within the container while one container appears large enough to stand within but would still have required crouching to access boxes on the floor.
Having considered the available evidence, including the statement evidence of Mr Khan,
Mr Weinert and the applicant, I am satisfied that the applicant’s duties while placed with UPS included unloading in the vicinity of 800 boxes (accepting the evidence of 7-8 containers with 150 to 180 boxes in each container shared between two workers), and that this involved significant periods of crouching and lifting. Crouching was required both for access to the smaller containers as well as to manipulate and lift boxes in the lower parts of the containers.
This is also consistent with the history provided by the applicant in an incident report print out from the respondent’s HSEQ app records the incident as follows:
“Unloading heavy boxes from a small container with a height of 160cm that took 30 min to complete. I did that roughly unloaded 10 containers per shift… I was constantly lifting heavy boxes from a small container that had a height of 160cm. I was always crouching and moving around inside the container with heavy boxes in my hand”.
I do not accept the evidence of Mr Khan and Mr Weinert that on a shift a worker would unload 400 to 500 boxes per day at most as that is mathematically inconsistent with their evidence as to the number of boxes per container per day shared between two workers.
Turning now, to the applicant’s complaints of injury, the applicant attended his General Practitioner (GP), Dr Alamgir on 12 December 2022 complaining of pain in his right hip area and pelvis. This is on the background of a consultation five days earlier when he complained of right elbow and forearm issues from lifting heavy boxes.
On 18 December 2022 Dr Alamgir recorded, “also C/O pain along Rt hip area, happening while bending to lift the boxes”.
Having considered the applicant’s evidence, the incident report print out and the contemporaneous records of Dr Alamgir, I am satisfied that the applicant first experienced the onset of symptoms in his right hip following his employment with the respondent and particularly following the work undertaken while placed with UPS. The applicant’s statement evidence is clear in this regard and supported by his pre-employment medical which did not identify any issues with the right hip prior to his employment.
For the reasons set out below, it’s not necessary for me to make findings with respect to the nature of the applicant’s employment prior to working for the respondent although it is not clear to me that his CV disclosed work of a particularly heavy nature.
There is no dispute that the applicant suffered from pre-existing, although asymptomatic disease in both his hips diagnosed by his treating surgeon, Dr Wernecke as femora-acetabular impingement (FAI) with osteoarthritis. The issue is whether the applicant’s employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
Dr Wernecke in a report dated 29 January 2024, addressed to the respondent’s insurer, recorded a history that the workplace injury occurred while loading cargo. He was in a crouched position. The applicant told him that, “this crouched walking position is what the job requires and he has being doing that work for years”. The history that he has been doing this work “for years” is clearly inconsistent with the statement evidence of the applicant. He had only been working on the UPS placement for a number of weeks.
Dr Wernecke expressed the opinion that long term work in a crouched position has likely led to his FAI deformity and certainly the acute exacerbation of labral tearing and acetabular rim fracture, which has led over the last year to arthritis in both hips. He continues that he suspected the sudden pain was an acute injury. Dr Wernecke provides his basis for recommending hip replacement surgery.
Dr Wernecke in a report dated 14 March 2024 records a history that, “On the 29^th of November 2020 [sic], while he was having to crouch and twist to move boxes, he developed acute bilateral hip and groin pain. He denied having previous hip issues before that time.”
He then expressed the opinion, “Certainly, his employment did not lead to the femoroacetabular impingement that is seen within his hip. However, prolonged periods in a crouched position with loading and twisting leads to ongoing damage and destruction of the acetabular labrum.”

Dr Bodel, in a report dated 2 April 2024 took the following occupational history with respect to the applicant’s employment with the respondent:
“Mr Bdeir indicates that he has been employed with Zoom Industrial Recruitment Pty Ltd – Mascot Branch. He was sent to work in freight handling work for UPS in Mascot. He initially did work at Australia Post, at UPS and also at the Alexandra Hub, where he worked in a warehouse for Estee Lauder products. Throughout this whole period he was always employed by the agency and not directly employed by any of the named companies.
His normal duties involved repetitive bending, twisting and heavy lifting activities.”
Dr Bodel records that he has had the benefit of the applicant’s statement setting out his various placements while employed by the respondent. He records a diagnosis of early to moderate bilateral osteoarthritic change in both hips and associated labral tears as part of that degenerative process.
Dr Bodel then expresses the opinion that the applicant, “has developed pain in both hips because of the labral tears and the aggravation, acceleration, exacerbation and deterioration to the underlying previously asymptomatic degenerative change in the hip joints.” He continues that, “Work is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process caused by the nature and conditions of his work with Zoom Industrial Recruitment Pty Ltd.” Dr Bodel accepts that the pathology in the applicant’s hips are largely constitutionally based but there is a work related aggravation. He was reluctant to support hip replacement surgery due to the applicant’s age.
Dr Bodel provided a supplementary report dated 29 November 2024 where he accepted that the proposed hip replacement surgery was appropriate.
The respondent relies upon a report of Dr Diebold dated 11 January 2023. Dr Diebold took a history of the claimant’s employment including that he had been working at UPS full time for five weeks unloading containers from planes, that the packages were up to 40kg in weight, and he was moving approximately 1000 boxes per day. He noted that the containers were 1.6m high and the applicant needed to “crouch slightly to get in and out of the containers”.
Dr Diebold considered the applicant had a probable hernia although this was outside his area of expertise. He considered that the right hip joint was not abnormal and that MRI findings were not uncommon, and he would consider them to be incidental. His report was however largely addressed towards the applicant’s right elbow complaints.
Dr Diebold provided a further report dated 1 March 2024. He appropriately emphasised at the beginning of his report, that he had not re-examined the applicant and that he last saw the applicant over 12 months earlier and only six weeks after his injury. He maintains his opinion that at the time of examination in January 2023 the left hip was clinically normal.
Dr Diebold indicated that he could not give a strong opinion on the applicant’s current clinical status as over 12 months had passed since he reviewed him. He that when assessed by Dr Wernecke, he had described positive impingement signs in both hips. He also noted that MRI scans from 14 October 2023 have shown evidence of mild degenerative disease in the weight bearing portion of both hips and therefore a diagnosis of work related aggravation of arthritis of the hips was plausibly possible. However, he considered that the applicant's levels of symptoms were greater than would be expected from the mild degree of arthritis on imaging.
Dr Diebold, considered that in the previous work history was important. He noted the history taken by Dr Wernecke that the applicant had been doing, “that work for years” and the subsequent opinion expressed by Dr Wernecke that long term work in a crouched position was likely to lead to his FAI deformity and acute exacerbation.
Dr Diebold noted that the history he had taken was that the applicant had been performing freight handler/courier jobs since 2017 but had only been working for UPS for five weeks at the time of his injury. This was different to the impression Dr Wernecke had of the applicant’s duties including many years of heavy lifting in a crouched position with his hips significantly flexed and it was on this basis that Dr Wernecke related hip symptoms to work duties.
Dr Diebold noted that this was not consistent with the history he had taken.
Dr Diebold did not consider that the diagnosis of acute labral tearing with or without rim fractures were acute but rather chronic changes and it was not plausible that these were acute changes caused by the work conditions described. He also considered it was implausible that they would occur on both sides as the same time. He was also of the opinion that the FAI deformity was congenital although secondary degeneration could be ‘accelerated by activity or heavy physical occupation for a decade or more, but this would not apply to the work duties described or the length of time involved. The description to me was that he crouched slightly to get in and out of the containers. And not that he was in a crouched position.’
Dr Diebold then expresses the following opinion:
“On the balance of probabilities, I am unable to find that the nature and conditions of his duties have been a substantial contributing factor to the condition of both hips. I am also unable to find that his work duties have been the main contributing factor to an aggravation of a pre-existing condition.”
The applicant submits that when taken as a whole I would be satisfied that the applicant suffered an aggravation of the underlying disease. The applicant also submitted that where medical experts talk in terms of a “possible” view then the Commission is entitled to decide, with reference to all of the evidence, what is the probable view, (Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14 at [132]; 15 DDCR 291).
The respondent submits that I cannot accept the opinions of Dr Wernecke and Dr Bodel as they were not given in a fair climate as the history provided to them has not been made out by the applicant.
I cannot accept Dr Wernecke’s opinion that the FAI developed because of prolonged crouching. The applicant’s evidence is that there was only prolonged crouching while employed by the respondent when he was placed with UPS which on the applicant’s own evidence was only a matter of weeks. This is consistent with the opinion of Dr Diebold that FAI is a congenital condition and this was accepted by the applicant in his submissions.
However, the cause of the underlying disease process in the hips is largely irrelevant and the reason for which I make no findings with respect to the applicant’s prior employment. Dr Wernecke is of the opinion that the sudden onset of pain was an acute exacerbation with labral tearing and acetabular rim fracture which has led to, over the last year, arthritis in both hips. This opinion is not predicated on the history of long term crouching but rather the crouching that the applicant was doing at the time of the exacerbation while placed at UPS.
This is consistent with the opinion of Dr Bodel that the applicant developed pain in both hips because of the labral tears and the aggravation, acceleration, exacerbation and deterioration to the underlying degenerative change in the hip joints. Dr Bodel had available to him the statement of the applicant setting out his work history and this formed a basis for him to express his opinion with respect to the work related aggravation.
However, I accept the respondent’s submission that Dr Bodel’s opinion is essentially a mere statement without supporting reasoning which does not assist me in appreciating the process behind the opinion. This limits the probative value of the doctor’s evidence and the weight I am able to place on it.
I am better assisted by the opinion of Dr Wernecke that the applicant’s work when placed at UPS led to the sudden onset of pain due to the acute labral tear and acetabular rim fracture. This opinion is also consistent with the applicant’s lay evidence and the pre-employment medical, that his hips were asymptomatic prior to commencing employment with the respondent.
Dr Diebold did not consider the labral tear and rim fractures were an acute condition, having found that the applicant was asymptomatic in his hips prior to the injury however Dr Diebold does not otherwise explain the acute onset of hip symptoms. Further, with respect to the work with UPS, the history relied on by Dr Diebold minimises the degree of crouching involved not only to enter into the containers but to then load or unload them with up to 180 boxes each. For these reasons I prefer the opinion of Dr Wernecke supported by Dr Bodel.
Consistent with the reasons set out above, I am satisfied that the applicant sustained an aggravation injury to his right hip in the course of his employment with the respondent.

Does the need for surgery result from the accepted injury?

Having found that the applicant sustained an aggravation injury to his right hip, consideration must now be given to whether the need for surgery results from that injury, such that the respondent will be liable for the cost of the proposed surgery. There is no dispute that the proposed surgery is necessary to address the condition in the applicant’s hip.
The applicant submits that in the absence of an explanation as to why the applicant’s condition wasn’t an issue before he was placed with UPS then applying the common law test of causation. I would be satisfied that the work made a material contribution to the need for the proposed surgery.
The applicant submits that the aggravation injury has made a material contribution to the need for the proposed hip replacement surgery and I would therefore find in the applicant’s favour.
The respondent submits that both issues must be addressed separately and that having found that the applicant sustained an aggravation injury, I must separately determine the issue of whether the aggravation injury made a material contribution to the need for surgery. The respondent further submitted that where the applicant was only working on the placement at UPS for a period of five weeks, then consistent with the opinion of Dr Diebold it is simply an evolution of the underlying osteoarthritic condition and that I would need to feel actual persuasion of a material contribution.
The presence of a pre-existing osteoarthritis or FAI does not prevent the need for treatment being “as a result of an injury,” in accordance with s 60 of the 1987 Act (see Taxis Combined Services (Victoria) Pty Limited v Schokman [2014] NSWWCCPD 18). Nor, does the fact that pre-existing conditions may have been factors in the needs for treatment mean that the proposed treatment is not a result of the injury, (see Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49. At [58] in Murphy, the Deputy President Roche said:
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
Dr Diebold did not accept that there was a work related injury. Having found so, I am not assisted by his opinion with respect to whether the need for surgery (which is not in dispute) results from the aggravation injury.
Similarly, Dr Bodel while accepting an aggravation did not express a clear opinion as to how the need for surgery was related to the aggravation injury.
I am however greatly assisted by Dr Wernecke. In a report of 29 January 2024 he expressed the opinion that the acute exacerbation of labral tearing and acetabular rim fracture on the background of FAI deformity has led to arthritis in the hips over the preceding year. As the claimant’s treating surgeon he is well placed to offer this opinion. Further, prior to the aggravation injury at work the applicant was symptom free in his hips and his symptoms post injury are sufficient to warrant significant surgery.
It may be, as submitted by the respondent that it was part of the evolution of the disease process. However, having found that the disease process was aggravated by the applicant’s employment to the extent that the pre-existing asymptomatic pathology was rendered symptomatic, which the surgery now seeks to relieve, I am persuaded that the aggravation injury made a material contribution to the need for the proposed surgery.
For these reasons I am satisfied that the work related aggravation injury has made a material contribution to the need for the proposed surgery and as such the respondent is to meet the costs of and incidental to that surgery in accordance with s 60 of the 1987 Act.

SUMMARY

The applicant sustained an aggravation injury to his right hip on 29 November 2023 in accordance with s 4(b)(ii) of the 1987 Act.
The 29 November 2023 aggravation injury to the applicant’s right hip made a material contribution to the need for right hip replacement surgery.
The respondent is to meet the costs of and incidental to the right hip replacement surgery in accordance with s 60 of the1987 Act.

[2025] NSWPIC 83

24 February 2025