Beeton v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Beeton v Woolworths Group Limited [2022] NSWPIC 156
APPLICANT:	Janelle May Beeton
RESPONDENT:	Woolworths Group Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	12 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed medical treatment; Held- that Ms Beeton suffers from a consequential condition in the left hip as a result of the injuries to the lumbar spine and right hip on 26 January 2015, and that the proposed left hip replacement surgery is reasonably necessary as the result of such injury on 26 January 2015.
DETERMINATIONS MADE:	1. Respondent to pay the applicant’s section 60 expenses in respect of treatment proposed by Dr Jorgen Hellman, namely a left hip replacement and associated expenses as a result of the injury on 26 January 2015.

STATEMENT OF REASONS

BACKGROUND

The applicant, Janelle May Beeton, (Ms Beeton) was employed by Woolworths Group Limited (the respondent) as a picker and packer. The respondent’s workers compensation insurer at the relevant time was Employers Mutual Limited as agent for NSW Self Insurance Corporation (the insurer).
In the course of her employment on 26 January 2015, Ms Beeton, was lifting a pallet from a stack of pallets when she sustained an injury to her lumbar spine and right hip. Ms Beeton alleged that as a result of the injuries to her lumbar spine and right hip on 26 January 2015, she developed a consequential condition in the left hip.
Ms Beeton made a claim for medical treatment in relation to a left hip replacement proposed by Dr Jorgen Hellman.
The respondent disputed liability for the proposed surgery to the left hip and for the alleged consequential condition in the left hip in the s 78 notices dated 1 July 2021 and 13 July 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether Ms Beeton suffered a consequential condition in her left hip as a result of the injury to her lumbar spine and right hip on 26 January 2015.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The parties attended a conciliation conference and arbitration on 31 March 2022. Ms Beeton was represented by Mr Simon Hunt who was instructed by Mr Paul Mantash of MRM Solicitors - Newcastle Lawyers. The respondent was represented by Ms Sarah Warren who was instructed by Mr Nicholas O’Connor of BBW Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Application to Admit late Documenst filed by the Applicant on 14 March 2022, and
(c)    Reply and attached documents

Submissions

The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note that the respondent submitted that the applicant has the onus of proof and has to establish that the need for surgery to the left hip resulted from the injury to her lumbar spine and right hip at work on 26 January 2015. The respondent submitted that I could not be satisfied that the left hip condition was related to the injury on 26 January 2015 and that if there was no consequential left hip condition as a result of the injury on 26 January 2015, the need for surgery to the left hip was not the result of the work injury.
Ms Beeton submitted that the issue to be determined was whether the condition giving rise to the need for surgery was a consequential condition. Ms Beeton submitted that a weight gain following the injury on 26 January 2015 was caused by an inability to exercise due to her back and right hip injuries, a change in gait favouring the left hip and overloading of the left hip and these factors resulted in the consequential condition in the left hip and satisfied the causal nexus required.

FINDINGS AND REASONS

The injury to the lumbar spine and right hip on 26 January 2015 was accepted as a work-related injury. There is no dispute that following that injury, Ms Beeton underwent surgery to the right hip, namely a right hip replacement on 2 July 2018.
The respondent conceded that weekly benefits had been reinstated and the claim for weekly benefits did not need to be determined. The respondent also conceded that the proposed surgery to the left hip, namely, a left hip replacement was reasonably necessary treatment if I found that there was a consequential condition in the left hip.

Evidence of Ms Beeton

In a statement dated 4 June 2020, Ms Beeton described an incident at work on 26 January 2015 when she was reaching up above head height to lift a heavy timber pallet down. She stated that while she was doing this task, she felt pain in her lower back and abdominal area.
Under “Previous injuries” Ms Beeton wrote:
“I had a right groin strain at work in about September/October 2014. I consulted Dr Sternbeck at that time and I had an x-ray on 14 October 2014 for my right hip and spine. My groin and hip pain came on at work when I was pushing a trolley while doing the picking of groceries. I lunged forward when the trolley moved on further than I expected and while lunging forward in a quick movement, I developed a sudden onset of pain in my right groin and hip. The pain in my groin and hip resolved to a large extent but it did not go away completely.”
Ms Beeton stated that on the following day, 27 January 2015, she consulted her general practitioner, Dr Sternbeck, who issued a Workers Compensation Certificate certifying that she had no work capacity. Dr Sternbeck referred her for physiotherapy, an MRI scan of the right hip, to Dr McKenzie, orthopaedic surgeon, and to Dr Jorgen Hellman, orthopaedic surgeon, for a second opinion. Ms Beeton stated that she had ongoing problems with pain in her right hip, groin and low back from 26 January 2015.
Ms Beeton stated that following the injury on 26 January 2015 she had two weeks off work and then returned to work on suitable duties working normal hours. She stated that there was some improvement in her pain and that physiotherapy seemed to help, but when physiotherapy ceased in September 2015 the pain in her right groin became severe. She said that she reported the pain had become more intense and the insurer treated this as a new injury, with the date of injury being15 September 2015.
Ms Beeton stated that she continued to work for the respondent on suitable duties although it was a struggle for her to get through the work due to the pain in groin, right hip and back. She said that in a meeting with the respondent on 18 October 2017 she was advised that her employment would be terminated because there were no suitable duties available and she was unable to return to her full pre‑injury duties.
Ms Beeton described a number of current symptoms and disabilities, including pain and restriction in the right hip, pain, aching and restriction of movement in the low back which became worse with bending, twisting, walking long distances, and sitting and standing for long periods of time.
In a statement dated 30 January 2021, Ms Beeton stated that the pain in her back extended to her left buttock and left hip.
In a statement dated 18 August 2021, Ms Beeton referred to her earlier statements dated 4 June 2020 and 30 January 2021 and said that she first had pain and aching in her left hip region from about the end of 2015. Ms Beeton wrote:
“I had severe pain in my right hip by that stage and I noticed the left hip when I was lying on my left side in bed. I found it difficult to get comfortable in bed because of my right hip and back and I noticed my left hip at the same time. I reported my left hip problems with Dr Sternbeck as early as 13 November 2015. My left hip problems were not as bad as my right hip at that stage; my left hip was in the background because my main problems were with my back and right hip.”
Ms Beeton stated she had a right hip replacement operation on 2 July 2018 and immediately after that she noted pain, aching and pinching in the left hip and groin region. She said that she thought the pain was more in her left groin at that stage and that she was also troubled by back pain.
Ms Beeton said that she had treatment from Dr Tame, pain management specialist, for her back. She stated that Dr Tame gave her injections into the sacroiliac joints which seemed to help for a while, but the pain then returned to the back and across her hips. She said that at the end of 2020, Dr Tame did a radiofrequency neurotomy on the left sacroiliac joint but that procedure did not help at first and seemed to make the pain in her back and left hip worse. She said that the pain in her back settled down after a few months but her left hip slowly got worse and her back gradually worsened. Ms Beeton said that she had further investigations of the left hip, including an MRI scan on 3 February 2021, and Dr Tame then referred her back to Dr Hellman to assess her left hip problems.
Ms Beeton stated that on 26 April 2021 she saw Dr Hellman and he discussed the option of a left hip replacement. She stated that she would like to go ahead with the operation as she could not put up with her left hip “the way it was now”.
Ms Beeton wrote:
“My left hip deteriorated rapidly after my right hip replacement was done (2 July 2018). I think my left hip problems have come from overloading my left hip because of my back and right hip problems and particularly while I was recovering from my right hip replacement. My left hip problems were there in the background from at least the end of 2015, but it was not bad enough to need treatment at that stage. I did tell Dr Sternbeck (GP) early on about my left hip and I understood that she has noted my complaint about my left hip.”
Ms Beeton said that some of the doctors who had provided an opinion concerning her claim had referred to her weight as being a relevant factor. She said that she was never a “thin girl”, but she was physically active before she injured her back and right hip, and enjoyed walking for exercise and recreation, and went on regular walks with her sister. She stated that at the time of the back and right hip injury she weighed 100kg and had been that weight for many years before. She said that in the time leading up to her right hip replacement operation she put on a lot of weight, around 25kg. She stated that she was unable to engage in any exercise because her right hip and back limited her ability to walk.
In describing her present symptoms and disabilities, Ms Beeton stated that she had severe pain, aching and restriction of movement in her left hip, and that pain got worse with standing and walking. She said that it was hard for her to walk, and she walked with a limp. She stated that her hip was getting worse. She said that for the last couple of weeks she had been using crutches (mainly when she went out), to help take the weight off her left hip. Ms Beeton said that walking and putting weight on her left hip and leg caused severe pain and the crutches helped to reduce the load on the left hip. She stated that this was not a long term solution, and she was concerned about the risk of falling and the risk of injuring her arms and shoulders from using crutches.
In a further statement dated 8 December 2021, Ms Beeton provided a response to the vocational assessment report of Access Injury Management dated 20 April 2021. She stated that she had ongoing pain, aching and restriction of movement in her back and hips. She said her left hip had deteriorated very rapidly and she was now at a stage where she was struggling to walk and had to use crutches to take the load off her hips. She said that her mobility was severely restricted, she could not move around freely, and would not be able to move around a workplace situation without a great deal of difficulty.

Section 78 notices

In a s 78 notice dated 1 July 2021, the insurer declined to pay for left hip replacement surgery on the basis that such medical expenses were not reasonably necessary and did not arise out of a workplace injury in relation to the claim for left hip replacement surgery.
The insurer noted that Ms Beeton had been referred to Associate Professor Leon Kleinman for an independent medical examination on 3 June 2021. The insurer then quoted part of that report dated 29 June 2021 which read as follows:
“She had no pain in her left hip prior to the right total hip replacement surgery but subsequent to her right total hip joint replacement surgery she developed increasing pain in her left hip. I do not consider that the worker’s employment to be a substantial contributing factor to any current symptoms alleged by Ms Beeton to her left hip. She has not worked since 2018 and the osteoarthritis has deteriorated dramatically.
I have previously reviewed x‑rays of her pelvis performed on 02/07/2019 and 04/03/2019 and in my opinion the x‑rays did not show any evidence in her left hip at that stage.
I believe that the proposed surgery for left hip replacement to be reasonably necessary as she has severe osteoarthritis in her left hip resulting in pain and stiffness in her hip.”
In a further s 78 notice dated 13 July 2021, the insurer wrote:
“EML have carefully considered the available evidence, and liability for your left hip injury is declined. This includes your request for surgery.”
The insurer provided reasons for disputing liability and maintained that the alleged left hip injury was not consequential to the accepted right hip or lumbar spine injury. The insurer again referred to the report of Associate Professor Kleinman dated 29 June 2021, and quoted the following parts of that report:
“In my opinion her left hip condition is due to constitutional, degenerative changes which has been aggravated by her body habitus.
In my opinion she has constitutional osteoarthritis in her left hip.
She gives no history of sustaining any injury to her left hip. She alleges that when she recovered consciousness following her total right hip surgery, her left hip was very painful.
There is no evidence of a pre‑existing condition. I have previously reviewed x‑rays of her pelvis performed on 2/7/2019 and 4/3/2019 and in my opinion the x‑rays did not show any evidence in her left hip at that stage. As she has not worked since January 2018 there is no aggravation of an underlying condition in her hip attributable to the nature and conditions of her work”.
I note that the report of Associate Professor Kleinman dated 29 June 2021 was not attached to the Reply or in evidence in this matter.

Medical Reports

Medical Assessment Certificate (MAC)

In the MAC issued by the Workers Compensation Commission on 21 October 2020, the Approved Medical Specialist (AMS), Dr David Lewington, noted that Ms Beeton continued to experience lumbar axial pain which was constant and aggravated by activity. He reported that in regard to the right hip, pain levels could fluctuate but were occasionally moderately severe especially with longer walking. He stated that with respect to her hip she could walk approximately two to three street blocks on a good day. He noted that she walked unaided but with a slight limp which she described as waddling. Dr Lewington reported that Ms Beeton weight 130kg. Dr Lewington assessed 7% whole person impairment (WPI) of the lumbar spine and 20% WPI of the right lower extremity (hip) which resulted in a combined total of 26% WPI as a result of the injury on 26 January 2015.
The AMS under “Previous or subsequent accidents, injuries or condition” noted:
“In October 2014 she strained her right groin region when pushing a trolley at work. She described lunging forwards as the trolley moved forward unexpectedly. She stumbled but did not fall. She felt that she had pulled a muscle. There was no time off work and symptoms steadily improved over a couple of weeks. She consulted her G.P and X-Rays were taken on 14 October 2014 and were reported to show some early hip joint degeneration in the right hip. Lumbar Spine X-Rays, presumably taken as a precautionary measure, were normal. She experienced no further problems with her right hip (or back) until the subject injury in January 2015”.

Reports of Treating Doctors and Health Professionals

In an entry in her clinical notes dated 22 September 2015, Dr Helen Sternbeck, treating general practitioner, wrote:
“Has recurrence of pain in right hip in last couple of weeks. Pushing heavy trolleys during online shopping at Woolworths and lifting heavy loads onto pallets.
Pain very similar to what she had earlier in year.
Responded then to physiotherapy.
Has not had gym program extended by insurer.
Doing exercises at home intermittently.
Examination
Back mildly tender lower lumbar spine region good ROM no pain.
Hips tender over both greater trochanters (left worse than right).
Hips good ROM. Pain on restricted hip flexion on right.
…
Reason for contact: Left hip pain.”
In an entry dated 13 November 2015, Dr Sternbeck wrote:
“Still getting a lot of pain in right hip and buttock and lower back but finds that when she goes for walks she is okay. Says pushing heavy trolleys with online shopping gives her pain.
Also getting pain in left lateral hip (over greater trochanter where she lies on left side at night). Due to have steroid injection to right hip on Monday.”
In a referral to Dr Jorgen Hellman dated 22 July 2016, Dr Sternbeck wrote:
“The pain recurred in September 2015. She had been pushing heavy trolleys filling online shopping orders and lifting heavy loads onto pallets. The pain was very similar to what she experienced in January.
She was tender over both greater trochanters. She had good range of movement of both hips but had pain on resisted hip flexion on the right.
The pain has persisted in that she now describes it as a ‘pinching’ pain in the lateral right and right buttock which was brought on by movement of the right leg, but also on prolonged standing. Sitting relieves it.
She has had numerous investigations, steroid injections to the hip, trochanteric bursa, and right sacroiliac joint without relief…”
In a report dated 24 August 2016, Dr Jorgen Hellman, treating orthopaedic surgeon, noted that Ms Beeton had significant posterior lumbar pain to the right side and lateral right hip pain. He noted she could not lie on her right side due to lateral thigh pain. On examination he reported that Ms Beeton was very overweight. He noted that the left hip had 100 degrees of flexion with 15 degrees internal rotation and 45 degrees external rotation without any pain, but the left iliotibial band was tight and she was a bit tender over the left trochanteric area. He considered that the worst of Ms Beeton’s problems was her lumbar back pain and recommended that she lose weight. He noted that the second problem was the pinching pain over the lateral hip which was due to trochanteric bursitis and a tear of the gluteus medius. He recommended that Ms Beeton exercise within the limits of pain.
In a report dated 6 June 2018, Dr Hellman noted that the right hip replacement surgery had been approved by the insurer. He reported that the left hip had a free and supple range of movement.
In a report dated 15 August 2018, Dr Hellman noted that the applicant was six weeks down the track from her right hip replacement. He reported that she was still quite weak.
In a report dated 3 October 2018, Dr Hellman noted that it was three months down the track from the right hip replacement but Ms Beeton was slow to recover due to her significant lumbar spine problems as well as her obesity. He noted that she had recently had a flare of lateral hip pain and could not lie on her right side last night. He reported that her main complaint was of lower lumbar pain.

In a report dated 3 July 2019 Dr Hellman noted that it was a year since the right hip replacement and Ms Beeton’s quality of life had vastly improved because of the hip replacement. However, he noted she was still having significant problems with both her weight and lumbar spine degeneration. He noted that there was mild degenerative change in the left hip.
In a report dated 28 April 2021, Dr Hellman noted Ms Beeton was struggling with significant left hip girdle pain due to degenerative osteoarthritis. He wrote:
“She did have problems with his hip very early on in the piece with an exacerbation of her pain at the time of her right hip replacement. That exacerbation lasted 6 months or so and then settled down to a bearable limit. Over the last year it has become increasingly worse.”
On examination Dr Hellman noted that the left hip had a very irritable range of movement. He reported that X‑ray and MRI scan of the left hip showed advanced degenerative change. He recommended that Ms Beeton undergo a left total hip replacement.
In a report to Ms Beeton’s solicitors dated 27 October 2021, Dr Hellman noted that Ms Beeton was continuing to struggle with significant left buttock to groin and thigh pain which was the same sort of pain she had in the right hip prior to the hip replacement. He noted that she always had a grumbling left sided pain but over the last 12 months it had become much worse and was ruining the quality of her life. He noted she got significant night pain and pain that stopped her walking comfortably, and she could not walk more than 100m. He reported she needed to use crutches and when shopping relied on a trolley to give her support. On examination he noted the left hip only went to about 60 degrees flexion limited by pain and there was no rotation in flexion, again exacerbating her pain. He reported that the X‑rays showed bone on bone degeneration in the left hip.
Dr Hellman wrote:
“I have told Janelle that there is more than one factor causing her hip arthritis. There is both a genetic predisposition to developing arthritis and also the workplace injury, which caused a non‑limiting aggravation of the hip arthritis. In relation to the definitions you have provided in your letter, her workplace injury has had a material contribution to her left hip condition. She did suffer aggravation of her hip pain with that injury and it has been ongoing. There is no doubt that her left hip is suitable for total hip replacement as she is at the end of her tether and her quality of life is poor because of her left hip pain.”
In a report to Dr Giblin dated 17 November 2017, Dr Simon Tame, specialist pain management physician, noted that Ms Beeton had a very poor walking tolerance of about 10‑15 minutes. He noted that prior to the injury, Ms Beeton used to enjoy regular walking with her sister and typically did three long walks a week. He noted that since her injury she had put on at least 15kg of weight.
In a report dated 26 November 2018, Dr Tame noted that Ms Beeton was making good progress with her right hip but was starting to experience some intermittent left groin pain. He wrote: “Hopefully this does not represent the development of advanced hip arthritis.” He noted that the principal complaint at present was low back pain.
In a report dated 4 March 2020, Dr Tame noted that he was arranging a hip X‑ray for Ms Beeton as the range of motion in the left hip seemed somewhat limited. He noted the X‑ray revealed loss of joint space medially and the superior part of the joint space also looked reduced, but not severely so. He noted she was likely to require a hip replacement at some stage in the future.
In a report dated 4 March 2020 to the insurer, Dr Tame noted that he had arranged an X‑ray for Ms Beaton looking at her left hip. He reported there was certainly some early arthritis but it might not be particularly symptomatic at present.
In a report of an ultrasound left hip dated 30 October 2017, Dr Lynn Smith noted a clinical history of left trochanteric bursitis. She concluded that the ultrasound appearances were consistent with trochanteric bursitis and Ms Beeton had been booked in for a steroid injection.
In a report of an ultrasound guided left trochanteric bursa steroid injection dated 30 October 2017, Dr Dimitrius Voutnis noted a clinical history of trochanteric bursitis and lateral left hip pain.
In a report of an X‑ray pelvis and right and left hips dated 5 March 2020, Dr Allan Aho noted that the left hip appeared normal.
In a report dated 25 September 2018, Mr Aaron Percival, treating physiotherapist, noted that Ms Beeton attended for physiotherapy on 12 July 2018, which was two weeks post right hip replacement following a history of low back and hip pain. He noted that prior to her surgery he had seen Ms Beeton once.
Mr Percival wrote:
“Overall she has progressed well with significant changes to her right hip function, especially with stairs. She performs a full range squat with no right hip pain, but is concerned with her left hip/groin pain. She feels that there is something going wrong with the left hip but I have advised her that it may be an issue, however it is more likely relating to compensatory gait patterns favouring the right hip.”
In a report dated 15 January 2019, Mr Percival noted that Ms Beeton had progressed well over the last few months since the right hip replacement. He wrote:
“… It is important to note that her left hip has seemed to suffer an increased load and potentially progressed some OA symptoms of the left hip joint. This will likely require some level of management in future.”
In a report dated 18 March 2021, Mr Phil Rees, exercise physiologist, noted that Ms Beeton continued to experience low back pain, and reported left hip pain. On physical examination he noted that Ms Beeton described pain over her lateral left thigh, iliotibial band, greater trochanteric bursa and anterior hip pain into her groin. He noted that she reported putting on an extra 20kg or more in recent months, and presented as morbidly obese which “in itself notably altered her ability to move freely, stretch or walk with a free‑flowing gait”. He reported she had considerably altered pelvic posture, anterior sway and reduced activation of corset and pelvic stability as well as gluteal musculature. Under “reported tolerances” he noted that the walking tolerance was five minutes before lower back pain or hip pain was noted.

Medico-legal reports

In a report dated 5 April 2017, Associate Professor Leon Kleinman, consultant orthopaedic surgeon, noted that Ms Beeton was working on night shift on 26 January 2015 when she lifted a pallet from the top of a stack of pallets and felt something “pop” in her right flank. He reported that she developed pain that radiated from the front of her abdomen to her back, the right buttock and down the right leg to the side of the knee and had a pinching sensation around the trochanter of the right hip.
On examination, Associate Professor Kleinman noted that Ms Beeton was very overweight, weighing 121.8kg and walked with an antalgic limp on her right leg. He expressed the opinion that Ms Beeton’s problems appeared to be arising from her right hip and she had early osteoarthritis of the hip and trochanteric bursitis of the hip. He considered that her weight was a contributing factor to her condition as it increased the strain on her hip. He concluded that Ms Beeton had developed a trochanteric bursitis and aggravated pre‑existing osteoarthritis in the right hip which in the incident at work. However, he considered that the aggravation of the osteoarthritis in the hip had ceased, and any ongoing pain was related to the trochanteric bursitis.
In a report dated 26 March 2018, Associate Professor Kleinman noted he had reviewed Ms Beeton and referred to a fall in 2014 and set out the following history: “In 2014 she fell and as a result she developed pain in her back with radiation of pain into her right groin and right hip.” He noted that Ms Beeton had known osteoarthritic changes in the right hip and then referred to the history in his earlier report of 5 April 2017.
Associate Professor Kleinman noted that Ms Beeton constantly felt pain in the right lumbar region of her back and had pain radiating from the lower back into the right groin and about halfway down the medial side of the thigh of the right leg. He noted she could not sleep on her right side at night because of pain over the greater trochanter of her right hip. He reported that she had difficulty ascending and descending stairs because she felt her right hip would give way. He reported that walking distance was limited and she said she could only walk for about 5 to 10 minutes and then got severe pain across her lower back and pain radiating into her right groin.
Associate Professor Kleinman expressed the opinion that Ms Beeton had osteoarthritis and trochanteric bursitis of her right hip and also sustained a soft tissue injury to the right side of the lumbar region and had a right sacro‑iliac joint problem. He wrote: “It is possible that her altered gait associated with the pain in her back and right hip could have aggravated the osteoarthritis in her right hip.” He considered that the work‑related aggravation had not ceased because she continued to complain of ongoing pain in her right hip. He noted that treatment had not been successful as she continued to complain of ongoing pain in the low back and right hip. Associate Professor Kleinman concluded that from a medical point of view she required total hip replacement surgery. He considered that the underlying osteoarthritis in the right hip had been aggravated by her obesity and general unfitness. He concluded that there had been a work‑related aggravation to the pre‑existing osteoarthritis in the right hip and that had not ceased because she continued to complain of ongoing pain in the hip.
In a report dated 14 February 2019, Associate Professor Kleinman again referred to a fall in 2014 which resulted in her developing pain in her back with radiation into the right groin and hip. He then referred to the history given in his report of 26 March 2018. He noted that since his last examination of Ms Beeton, she had come to surgery in the form of a right total hip joint replacement performed by Dr Hellman on 2 July 2018. Associate Professor Kleinman reported Ms Beeton still had some pain and stiffness in her right hip and had ongoing pain in her low back which had not changed since she first injured her back.
Associated Professor Kleinman wrote:
“Following her right total hip joint replacement surgery she developed pain in her left hip. She says that her left hip has been investigated radiologically but she did not bring the x‑rays of her left hip to the consultation today because they were not funded by the insurer.”
On examination, Associate Professor Kleinman noted that Ms Beeton walked well without a limp. He considered that she had a good outcome from the replacement surgery to her right hip. He considered that she needed to lose weight to reduce the strain on her low back and right hip. Under “diagnosis” he wrote:
“The incident at work aggravated the pre‑existing osteoarthritis in her right hip and caused a trochanteric bursitis and as a result she came to right total hip replacement surgery. She has had a good outcome from her hip replacement surgery.”
Associate Professor Kleinman also expressed the view that Ms Beeton could have sustained a soft tissue strain of her back in the incident but now had mechanical pain in the low back related to her body habitus. He considered that the back condition should be included in the right hip claim as she did give a history of injuring her back and right hip in the same incident. However, he considered that the work-related aggravation of the back had ceased.
In a report dated 23 April 2020, Associate Professor Kleinman noted he had reviewed Ms Beeton. Associate Professor Kleinman provided a history of a fall in 2014 and then referred to the history in his report of 14 February 2019. He noted that Ms Beeton continued to have ongoing problems with her left hip since he last saw her.
Under “present complaints” Associate Professor Kleinman reported that she occasionally noted that she limped a bit on her right leg and had ongoing pain in her left hip and a feeling of “pinching” in her left hip. Ms Beeton said that her walking distance was limited by pain in the low back and left buttock. On examination he noted that she weighed 131.7kg. On examination of the left lower extremity, he found the left hip was mobile, she was tender to palpation above the tip of the greater trochanter of the left hip and got pain over the tip of the greater trochanter with her left hip fully flexed and “externally internally rotation, on internal rotation in particular”. Ms Beeton was tender to palpation over the abductor longus tendon of the left hip.
Associated Professor Kleinman referred to the X‑rays of the pelvis taken on 4 March 2020 and commented that he could see no significant arthritic change in the left hip. He expressed the opinion that Ms Beeton had a trochanteric bursitis of her left hip which was related to her body habitus and was not due to the incident at work on 15 September 2015.
Under “opinion” Associated Professor Kleinman wrote:
“She developed low back pain as a result of the fall at work on the 15/09/2015 but in my opinion the injury to her back as (sic) recovered and the ongoing pain in her low low back is a mechanical pain related to her body habitus.
She aggravated pre‑existing osteoarthritic change in her right hip as a result of the fall and as a result she has come to right total hip replacement surgery. She has had a fair result from her hip replacement surgery.
She has developed trochanteric bursitis in her left hip which in my opinion is constitutional and not related to any injury sustained in the fall at work on 15/09/2015”
In a report dated 19 December 2019 Dr Trevor Best, orthopaedic surgeon, noted that since the operation on the right hip, Ms Beeton had noted a pinching sensation in the left groin region intermittently. She reported that it was mild in comparison to the previous symptoms of the right hip. On examination, Dr Best noted that there was a mild antalgic limp on the right while walking. Dr Best noted that Ms Beeton had a limitation of function with severely restricted walking.
In a report dated 21 January 2021, Dr Eddie Price, occupational physician, noted that Ms Beeton’s reported weight was 130kg which she stated was a gain of weight. He noted that after sitting she walked with a limp of the left leg. On examination, external rotation of the left hip was limited to approximately 50% of normal and internal rotation was similarly limited. Dr Price reported Ms Beeton was tender to palpation of the lateral muscles over the left hip region. He noted that Ms Beeton expressed a history of chronic ongoing pain and limitation of walking. He considered that she had a limitation of function with severely restricted walking.
In a report dated 23 December 2021, Dr Price noted that he had re‑examined Ms Beeton. He noted that she walked with a limp of the left leg. On examination, her reported weight was 130kg. Dr Price wrote:
“Around 26 January, she weighed 110 kg but since that time, because she was unable to exercise during her injury, she has put on a further 35 kg. She has also noted that she was unable to exercise due to her injuries and she walked awkwardly and she believed that her left hip problems became radically worse from overloading of her left hip due to the right hip problems and her convalescence from the right hip operation”.
Dr Price made the following diagnosis:
“Ms Beeton is a chronic pain patient and although she has had a good result from the right total hip replacement, she has ongoing low back pain but also now increasing pain and disability due to consequential development of osteoarthritis in the left hip region.
Attributability: Although she principally injured her right hip and lower back in the accident, her altered gait of the right hip resulted in the development of osteoarthritis in the left hip and this together with her low back pain has aggravated the left hip further, speeding up the development of osteoarthritis to the extent that the pain management specialist believed that a referral to the orthopaedic surgeon for consideration of left hip replacement was now the best option to significantly reduce her chronic pain.
Accordingly, I feel that the injury of 26 January 2015, is a major contributing factor to her left hip osteoarthritis and the solution to her chronic pain is a total hip replacement.”
In the Vocational Assessment Review from Access Injury Management dated 20 April 2021 Ms Hurley, rehabilitation counsellor noted that Ms Beeton had developed advanced left hip arthritis based on the feedback provided by Dr Tame.

Discussion

The respondent conceded that the surgery to the left hip proposed by Dr Hellman was reasonably necessary.
Therefore, the matter to be determined is whether the condition in the left hip was consequential upon the accepted back and right hip injury on 26 January 2015.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Further, his Honour stated at [463]–[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The High Court in Comcare v Martin [2005] HCA 26 (Martin) considered the extent to which one can rely on a “common sense approach”.
In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)

In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]- [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
Ms Beeton 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 proposed for the left hip is reasonably necessary “as a result of” the injury. That is, she has to establish that the injury materially contributed to the need for the surgery to the left hip.
Ms Beeton gave evidence, which I accept, that she first had pain and aching in her left hip region from about the end of 2015. Ms Beeton said that she had severe pain in her right hip by that stage and noticed the left hip when she was lying on her left side in bed. She said that she found it difficult to get comfortable in bed because of her right hip and back and noticed her left hip at the same time. She stated that she reported her left hip problems with Dr Sternbeck as early as 13 November 2015. She said that the left hip problems were not as bad as the right hip at that stage and her main problems were with her back and right hip.
Ms Beeton stated she had a right hip replacement operation on 2 July 2018 and immediately after that she noted pain, aching and pinching in the left hip and groin region. She said that she thought the pain was more in her left groin at that stage and that she was also troubled by back pain.
Ms Beeton said that at the end of 2020, Dr Tame did a radiofrequency neurotomy on the left sacroiliac joint but that procedure seemed to make the pain in her back and left hip worse. She said that the pain in her back settled down after a few months but her left hip slowly got worse and her back gradually worsened.
Ms Beeton stated that she saw Dr Hellman on 26 April 2021 and he discussed the option of a left hip replacement. She stated that she would like to go ahead with the operation as she could not put up with her left hip “the way it was now”.
Ms Beeton stated that her left hip deteriorated rapidly after her right hip replacement on 2 July 2018. She said that she thought her left hip problems came from overloading her left hip because of her back and right hip problems and particularly while she was recovering from the right hip replacement. She said that her left hip problems were there in the background from at least the end of 2015, but it was not bad enough to need treatment at that stage.”
Ms Beeton said that some of the doctors who had provided an opinion concerning her claim had referred to her weight as being a relevant factor. She said that she was never a “thin girl”, but she was physically active before she injured her back and right hip, and enjoyed walking for exercise and recreation, and went on regular walks with her sister. She stated that at the time of the back and right hip injury she weighed 100kg and had been that weight for many years before. She said that in the time leading up to her right hip replacement operation she put on a lot of weight, around 25kg. She stated that she was unable to engage in any exercise because her right hip and back limited her ability to walk.
In describing her present symptoms and disabilities, Ms Beeton stated that she had severe pain, aching and restriction of movement in her left hip, and that pain got worse with standing and walking. She said that it was hard for her to walk, and she walked with a limp.
Ms Beeton’s general practitioner, Dr Sternbeck, in her notes of 22 September 2015, referred to the hips being tender over both greater trochanters with the left worse than the right. She reported that the reason for contact was left hip pain.
In her notes of 13 November 2015, Dr Sternbeck noted that Ms Beeton was getting pain in left lateral hip, over greater trochanter where she lay on left side at night.
In a report dated 26 November 2018, Dr Tame noted that Ms Beeton was making good progress with her right hip but was starting to experience some intermittent left groin pain. He wrote: “Hopefully this does not represent the development of advanced hip arthritis.” He noted that the principal complaint at present was low back pain.
In a report dated 4 March 2020, Dr Tame noted that he had arranged a hip X‑ray for Ms Beeton as the range of motion in the left hip seemed somewhat limited. He noted the x‑ray revealed loss of joint space medially and the superior part of the joint space also looked reduced, but not severely so. He noted she was likely to require a hip replacement at some stage in the future.
In a report dated 4 March 2020 to the insurer, Dr Tame reported there was certainly some early arthritis in the left hip but it might not be particularly symptomatic at present.
In a report dated 28 April 2021, Dr Hellman noted Ms Beeton was struggling with significant left hip girdle pain due to degenerative osteoarthritis. He reported that Ms Beeton did have problems with her hip “very early on in the piece” with an exacerbation of her pain at the time of her right hip replacement. He said that the exacerbation lasted six months or so and then settled down to a bearable limit, but over the last year had become increasingly worse. On examination Dr Hellman noted that the left hip had a very irritable range of movement. He reported that X‑ray and MRI scan of the left hip showed advanced degenerative change. He recommended that Ms Beeton undergo a left total hip replacement.
In a report to Ms Beeton’s solicitors dated 27 October 2021, Dr Hellman said that he had told Ms Beeton that there was more than one factor causing her hip arthritis. Dr Hellman stated that there was both a genetic predisposition to developing arthritis and also the workplace injury, which caused a non‑limiting aggravation of the hip arthritis. Dr Hellman expressed the opinion that the workplace injury has had a material contribution to her left hip condition. He stated that Ms Beeton had suffered aggravation of her hip pain with that injury and it had been ongoing.
Mr Percival, physiotherapist, noted that Ms Beeton attended for physiotherapy on 12 July 2018, which was two weeks post right hip replacement following a history of low back and hip pain. He commented on right hip function and then noted that Ms Beeton was concerned with her left hip/groin pain and felt that there was something going wrong with the left hip. Mr Percival advised her that it might be an issue but was is more likely relating to compensatory gait patterns favouring the right hip.
On 15 January 2019, Mr Percival noted that Ms Beeton had progressed well since the right hip replacement but wrote:
“… It is important to note that her left hip has seemed to suffer an increased load and potentially progressed some OA symptoms of the left hip joint. This will likely require some level of management in future.”
In a report dated 18 March 2021, Mr Phil Rees, exercise physiologist, noted that Ms Beeton continued to experience low back pain, and reported left hip pain. He noted that she reported putting on an extra 20kg or more in recent months, and presented as morbidly obese which “in itself notably altered her ability to move freely, stretch or walk with a free‑flowing gait”. He reported she had considerably altered pelvic posture, anterior sway and reduced activation of corset and pelvic stability as well as gluteal musculature.
In a report dated 5 April 2017, Associate Professor Kleinman, gave a history of Ms Beeton working on night shift on 26 January 2014 when she lifted a pallet from the top of a stack of pallets and felt something “pop” in her right flank. He reported that she developed pain that radiated from the front of her abdomen to her back, the right buttock and down the right leg to the side of the knee and had a pinching sensation around the trochanter of the right hip. He noted that Ms Beeton weighed 121.8kg and walked with an antalgic limp on her right leg.
In his next report dated 26 March 2018, Associate Professor Kleinman referred to a fall in 2014 and set out the following history: “In 2014 she fell and as a result she developed pain in her back with radiation of pain into her right groin and right hip.” He noted that Ms Beeton had known osteoarthritic changes in the right hip and then referred to the history in his earlier report of 5 April 2017.
Associate Professor Kleinman expressed the opinion that Ms Beeton had osteoarthritis and trochanteric bursitis of her right hip, a soft tissue injury to the right side of the lumbar region and a right sacro‑iliac joint problem. He wrote: “It is possible that her altered gait associated with the pain in her back and right hip could have aggravated the osteoarthritis in her right hip.” He considered that the work‑related aggravation had not ceased because she continued to complain of ongoing pain in her right hip and she required total hip replacement surgery. He commented that the underlying osteoarthritis in the right hip had been aggravated by her obesity and general unfitness.
In his next report dated 14 February 2019, Associate Professor Kleinman again referred to a fall in 2014 which resulted in her developing pain in her back with radiation into the right groin and hip. He then referred to the history given in his report of 26 March 2018. He noted that since his last examination of Ms Beeton, she had come to surgery in the form of a right total hip joint replacement on 2 July 2018. He reported Ms Beeton still had some pain and stiffness in her right hip and had ongoing pain in her low back which had not changed since she first injured her back. Associated Professor Kleinman noted that following the right total hip joint replacement surgery Ms Beeton developed pain in her left hip.
In the final report filed with the Reply and dated 23 April 2020, Associate Professor Kleinman again provided a history of a fall in 2014 and then referred to the history his report of 14 February 2019. He noted that Ms Beeton continued to have ongoing problems with her left hip since he last saw her.
He reported that Ms Beeton said she occasionally limped a bit on her right leg, had ongoing pain in her left hip and a feeling of “pinching” in her left hip and her walking distance was limited by pain in the low back and left buttock. On examination he noted that she weighed 131.7kg. Associated Professor Kleinman referred to the X‑rays of the pelvis taken on 4 March 2020 and commented that he could see no significant arthritic change in the left hip. He expressed the opinion that Ms Beeton had a trochanteric bursitis of her left hip which was related to her body habitus and was not due to the incident at work on 15 September 2015.
Under “opinion” Associated Professor Kleinman wrote:
“She developed low back pain as a result of the fall at work on the 15/09/2015 but in my opinion the injury to her back as(sic) recovered and the ongoing pain in her low low back is a mechanical pain related to her body habitus.
She aggravated pre‑existing osteoarthritic change in her left hip as a result of the fall and as a result she has come to right total hip replacement surgery. She has had a fair result from her hip replacement surgery.
She has developed trochanteric bursitis in her left hip which in my opinion is constitutional and not related to any injury sustained in the fall at work on 15/09/2015”.
In a report dated 19 December 2019 Dr Best noted that since the operation on the right hip, Ms Beeton had noted a pinching sensation in the left groin region intermittently. On examination, Dr Best noted that there was a mild antalgic limp on the right while walking. Dr Best noted that Ms Beeton had a limitation of function with severely restricted walking.
In a report dated 21 January 2021, Dr Price noted that Ms Beeton’s reported weight was 130kg which she stated was a gain of weight. He noted that she walked after sitting with a limp of the left leg. Dr Price reported Ms Beeton was tender to palpation of the lateral muscles over the left hip region. He noted that Ms Beeton expressed a history of chronic ongoing pain and limitation of walking. He considered that she had a limitation of function with severely restricted walking.
In a report dated 23 December 2021, Dr Price noted Ms Beeton walked with a limp of the left leg and her reported weight was 130kg. Dr Price noted that around 26 January Ms Beeton weighed 110kg but since that time, because she was unable to exercise during her injury, she has put on a further 35kg. Dr Price said that Ms Beeton also noted that she was unable to exercise due to her injuries and walked awkwardly and believed that her left hip problems became radically worse from overloading of her left hip due to the right hip problems and her convalescence from the right hip operation.
Dr Price considered that Ms Beeton now had increasing pain and disability due to consequential development of osteoarthritis in the left hip region. Dr Price expressed the opinion that although Ms Beeton principally injured her right hip and lower back in the accident, her altered gait of the right hip resulted in the development of osteoarthritis in the left hip and this together with her low back pain has aggravated the left hip further, speeding up the development of osteoarthritis to the extent that consideration of left hip replacement was now the best option to significantly reduce her chronic pain. Dr Price concluded that the injury of 26 January 2015, was a major contributing factor to her left hip osteoarthritis and the solution to her chronic pain was a total hip replacement.
I am satisfied that Mrs Beeton first experienced some pain in the left hip in September 2015 and that there was a significant increase in her symptoms in the left hip after the right hip replacement surgery on 2 July 2018.
Ms Beeton contended that the injury to the back and left hip on 26 January 2015 resulted in a change in gait, an increase in weight due to the inability to exercise because of pain and the overloading of the left hip, and that all these contributed to the aggravation of her left hip condition.
There was certainly evidence that Ms Beeton limped after the injury on 25 January 2015. Ms stated that it was hard for her to walk, and she walked with a limp. The AMS in the MAC dated 21 October 2020 noted that Ms Beeton walked with a slight limp. Associate Professor Kleinman in his report dated 5 April 2017 noted that Ms Beeton walked with an antalgic gait on her right leg. In his report dated 26 March 2018 Associate Professor Kleinman noted that Ms Beeton walked with a slight limp on her right leg. In his report of 23 April 2020 Associate Professor Kleinman noted that Ms Beeton limped a bit on her right leg. Dr Best in his report of 19 December 2019 noted Ms Beeton had a mild antalgic limp on the right while walking. Dr Price in his reports of 21 January 2021 and 23 December 2021 noted that Ms Beeton had a limp of the left leg. On 25 September 2019, the treating physiotherapist, Mr Percival noted that Ms Beeton was concerned with her left hip/groin pain and advised her that it was likely related to compensatory gait patterns favouring the right hip.
I accept that Associate Professor Kleinman noted in his report of 14 February 2019 that Ms Beeton walked well, without a limp. However, it appears that he observed Ms Beeton limping in all the other examinations and Dr Best observed Ms Beeton limping in his examination on 19 December 2019. Therefore, I am satisfied that the evidence supports a finding that following the injury to her back and right hip on 25 January 2015 Ms Beeton changed her gait and started to limp.
Ms Beeton also contended that following the injury to the back and right hip on 26 January 2015, her weight increased due to the inability to exercise because of pain in the back and right hip.
Ms Beeton gave evidence that she was never a “thin girl”, but she was physically active before she injured her back and right hip, and enjoyed walking for exercise and recreation, and went on regular walks with her sister. She stated that at the time of the back and right hip injury she weighed 100kg and had been that weight for many years before. She said that in the time leading up to her right hip replacement operation she put on a lot of weight, around 25kg. She stated that she was unable to engage in any exercise because her right hip and back limited her ability to walk.
On 17 November 2017, Dr Tame noted that Ms Beeton had a very poor walking tolerance of about 10‑15 minutes. He noted that prior to the injury, Ms Beeton used to enjoy regular walking with her sister and typically did three long walks a week. He noted that since her injury she had put on at least 15kg of weight.
On 21 October 2020 the AMS noted that Ms Beeton could walk two to three street blocks on a good day and weighed 130Kg.
Dr Best, on 19 December 2019, noted that Ms Beeton weighed 130kg and had limitation of function with severely restricted walking.
On 23 December 2021, Dr Price noted that Ms Beeton’s reported weight was 130kg. Dr Price reported that around the date of the injury 26 January Ms Beeton weighed 110kg but since that time, because she was unable to exercise during her injury, she has put on a further 35kg.
On 18 March 2021, Mr Rees noted that Ms Beeton reported putting on an extra 20kg or more in recent months. Under “reported tolerances” he noted that the walking tolerance was five minutes before lower back pain or hip pain was noted.

I accept that Ms Beeton was unable to exercise as she had before her injury on 26 January 2015 and that following this injury she put on an extra 20kg to 30kg.
Ms Beeton also contended that the injury to the back and right hip on 26 January 2015 resulted in the overloading of the left hip.
Ms Beeton stated that her left hip deteriorated rapidly after her right hip replacement on 2 July 2018. She thought that her left hip problems had come from overloading her left hip because of her back and right hip problems and particularly while she was recovering from the right hip replacement.
Dr Hellman on 24 August 2016 noted that Ms Beeton could not lie on her right side due to pain. This was evidence that she favoured her left side in order to protect the right side and also evidence that this favouring of the left side was starting to affect the left hip. This occurred well before the surgery on 18 July 2018. The evidence above concerning change in gait also supports a finding that following the injury to the back and right hip on 26 January 2015 there was an overloading of the left hip.
Mr Percival on 15 January 2019 considered that following the right hip replacement it was important to note that Ms Beeton’s left hip seemed to suffer an increased load and potentially progressed some OA symptoms of the left hip joint.
Ms Beeton submitted that the change in gait, gain in weight and overloading of the left hip after the injury on 26 January 2015 caused an aggravation, acceleration, deterioration and exacerbation of her pre-existing left hip condition and that she now needs a left hip replacement.
Dr Price expressed the opinion that although Ms Beeton principally injured her right hip and lower back in the accident, her altered gait of the right hip resulted in the development of osteoarthritis in the left hip and this together with her low back pain has aggravated the left hip further, speeding up the development of osteoarthritis to the extent that a referral to the orthopaedic surgeon for consideration of left hip replacement was now the best option to significantly reduce her chronic pain. Dr Price concluded that the injury of 26 January 2015, was a major contributing factor to her left hip osteoarthritis and the solution to her chronic pain is a total hip replacement.
In a letter to Dr Hellman from the applicant’s solicitors dated 9 September 2021, Mr Mantach requested that Dr Hellman examine Ms Beeton and provide a report as to the probable cause(s) of Ms Beeton’s left hip condition, and in particular whether her employment with the respondent and/or her accepted back and right hip injuries materially contributed to her left hip condition.
In a report to Ms Beeton’s solicitors dated 27 October 2021, Dr Hellman noted that Ms Beeton was continuing to struggle with significant left buttock to groin and thigh pain which was the same sort of pain she had in the right hip prior to the hip replacement. He noted that she always had a grumbling left sided pain but over the last 12 months it had become much worse and was ruining the quality of her life. He noted she got significant night pain and pain that stopped her walking comfortably, and she could not walk more than 100m. He reported she needed to use crutches and when shopping relied on a trolley to give her support. On examination he noted the left hip only went to about 60 degrees flexion limited by pain and there was no rotation in flexion, again exacerbating her pain. He reported that the X‑rays showed bone on bone degeneration in the left hip.
Dr Hellman wrote:
“I have told Janelle that there is more than one factor causing her hip arthritis. There is both a genetic predisposition to developing arthritis and also the workplace injury, which caused a non‑limiting aggravation of the hip arthritis. In relation to the definitions you have provided in your letter, her workplace injury has had a material contribution to her left hip condition. She did suffer aggravation of her hip pain with that injury and it has been ongoing. There is no doubt that her left hip is suitable for total hip replacement as she is at the end of her tether and her quality of life is poor because of her left hip pain.”
In his first report of 5 April 2017, Associate Professor Kleinman expressed the opinion that Ms Beeton’s problems appeared to be arising from her right hip and she had early osteoarthritis of the hip and trochanteric bursitis of the hip. He considered that her weight was a contributing factor to her condition as it increased the strain on her hip. He concluded that Ms Beeton had developed a trochanteric bursitis and aggravated pre‑existing osteoarthritis in the right hip which in the incident at work. However, he considered that the aggravation of the osteoarthritis in the hip had ceased, and any ongoing pain was related to the trochanteric bursitis.
However, in his next report of 26 March 2018, Associate Professor Kleinman expressed the opinion that Ms Beeton had osteoarthritis and trochanteric bursitis of her right hip, a soft tissue injury to the right side of the lumbar region and a right sacro‑iliac joint problem. He wrote: “It is possible that her altered gait associated with the pain in her back and right hip could have aggravated the osteoarthritis in her right hip.” He considered that the work‑related aggravation had not ceased because she continued to complain of ongoing pain in her right hip.
In his next report of 23 April 2020, Associate Professor Kleinman wrote:
“She developed low back pain as a result of the fall at work on the 15/09/2015 but in my opinion the injury to her back as (sic) recovered and the ongoing pain in her low low back is a mechanical pain related to her body habitus.
She aggravated pre‑existing osteoarthritic change in her right hip as a result of the fall and as a result she has come to right total hip replacement surgery. She has had a fair result from her hip replacement surgery.
She has developed trochanteric bursitis in her left hip which in my opinion is constitutional and not related to any injury sustained in the fall at work on 15/09/2015”.
A further report of Associate Professor Kleinman dated 29 June 2021 was referred to in the s 78 notices dated 1 July 2021 and 13 July 2021. However, as noted above, report dated 29 June 2021 was not in evidence. It also appears from the selected passages quoted that Associate Professor Kleinman did not actually consider the question of whether Ms Beeton had developed a consequential condition in the left hip as a result of the injury to the low back and right hip on 26 January 2015. As the full report is not in evidence, I have placed no weight on these selected passages in the s 78 notices.
Associate Professor Kleinman changed his opinion concerning the question of whether aggravation of the osteoarthritis in the hip had ceased without adequately explaining his reasons for doing so. In his first report dated 5 April 2017 he said that the aggravation had ceased yet in his next report dated 26 March 2018 he said that the work‑related aggravation had not ceased.
A further concern emerged in considering Associate Professor Kleinman’s reports. In his final report of 23 April 2020, he referred to Ms Beeton having developed low back pain as a result of the fall at work on 15 September 2015 and the aggravation of pre-existing osteoarthritic change in her right hip as a result of the fall. Not only has Associate Professor Kleinman referred to an incorrect date of injury but he stated that the injury occurred as a result of a fall. There was no evidence to support such a mechanism of injury. Therefore, I have concluded that Associate Professor Kleinman’s reports cannot be relied upon in considering issues of causation.
Because of these inconsistencies and problems in Associate Professor Kleinman’s report I have preferred the opinions expressed by Dr Price and Dr Hellman. In particular, I have placed considerable weight on the opinion of Dr Hellman as he is the treating orthopaedic surgeon and has seen Ms Beeton on numerous occasions since the incident on 26 January 2015.
I am satisfied that the change in gait, gain in weight and overloading of the left hip after the injury on 26 January 2015 made a material contribution to the aggravation, acceleration, deterioration and exacerbation of her pre-existing left hip condition.
I find that Ms Beeton suffers from a consequential condition in the left hip as a result of the injuries to the lumbar spine and right hip on 26 January 2015, and that the proposed surgery by Dr Jorgen Hellman is reasonably necessary as the result of such injury on 26 January 2015.
The respondent is to pay Ms Beeton’s s 60 expenses in respect of treatment proposed by Dr Jorgen Hellman, namely a left hip replacement and associated expenses as a result of the injury on 26 January 2015.

[2022] NSWPIC 156

12 April 2022