Brassington v Blacktown City Council
[2022] NSWPIC 497
•7 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Brassington v Blacktown City Council [2022] NSWPIC 497 |
| APPLICANT: | Gregory Brassington |
| RESPONDENT: | Blacktown City Council |
| Member: | Elizabeth Beilby |
| DATE OF DECISION: | 7 September 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for surgery to left hip; consideration of section 4b(ii) of the Workers Compensation Act 1987 (1987 Act); Held – finding on injury for the applicant; finding that the proposed surgery was reasonably necessary and results from the applicant’s employment with the respondent and that the applicant is not precluded from making a claim pursuant to section 261 of the 1987 Act. |
| determinations made: | 1. The applicant has suffered an injury to his left hip within the meaning of s 4b(ii) of the Workers Compensation Act 1987. 2. The proposed surgery is reasonably necessary and results from the applicants employment with the respondent. 3. The applicant is not precluded from making a claim pursuant to s 261 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Gregory Brassington (the applicant) commenced employment with the respondent in or about 1999 as a maintenance worker. He describes in his statement the work that he did which included bending, lifting, driving, garden maintenance and cleaning.[1]
[1] Application to Resolve a Dispute (the Application) page 1.
There has been no challenge by Blacktown City Council (the respondent) to the work that the applicant describes that he did and it can generally be described as physically demanding.
On 12 October 2000 the applicant was involved in a motor vehicle accident when he crashed into an electricity pole. The applicant describes the event in his statement which included his left knee hitting the dashboard “with a great deal of force”. He also experienced pain in his lumbar spine and right knee. The applicant returned to work after approximately one week and understood he was meant to perform light duties, unfortunately these were not provided and the applicant says he carried out normal duties.[2]
[2] Application page 1.
Crucially in the applicant’s statements[3] the applicant says that he experienced a dull aching pain in his right hip which would be more painful when he was performing his duties at work.
[3] 15 April 2019, 25 November 2020.
The applicant sought treatment from his general practitioner Dr Azar whose notes have been provided to the Personal Injury Commission (the Commission) and at a later time in June 2017 sought treatment from Dr Rizkallah in relation to bilateral problems with his hips.
The applicant now seeks surgery, as recommended by Dr Rizkallah to his right hip, in the form of an arthroplasty.
PRELIMINARY ISSUES
An application was made in previous proceedings in respect of medical treatment to the applicant’s left hip with the same employer.
Deputy President Snell in proceedings 7068/20 found in favour of the applicant on appeal and ordered that the respondent should pay the claimed medical expenses.
Those proceedings have no relation to the current proceedings. I agree with the respondent’s submissions that there can be no res judicata or issue estoppel in the present proceedings as the previous claim relates to a different body system.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
a. has the applicant sustained an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act)?
b. Does the need for surgery as recommended by Dr Rizkallah result from a compensable injury?
c. Does s 254 of the Workplace Injury and Management and Workers Compensation Act 1998 (1998 Act) preclude the applicant from receiving compensation?
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application, and
(b) Application to Admit Late Documents (Reply) dated 20 April 2022.
The applicant was able to make oral submissions which they did so at the arbitration, the respondent then filed written submissions dated 30 May 2022. The applicant then filed further submissions on 27 July 2022. The submissions are taken into account in my determination.
Medical evidence
I will now turn to the medical evidence in this dispute.
Dr Rizkallah
Dr Rizkallah is the applicant’s treating orthopaedic surgeon. Indeed, he is the surgeon who operated on the applicant’s right knee and also his left shoulder and right hand (carpal tunnel decompression).
He has prepared reports focused on the left hip and there is a relevant one dated 22 October 2020.[4] In that report Dr Rizkallah confirmed that the applicant consulted with him in relation to his hip problems on 10 June 2020, 17 June 2020 and for the last time on 1 July 2020.
[4] Application page 86.
The applicant had given Dr Rizkallah a history of injuring both his hips on multiple occasions during the course of his employment. It was Dr Rizkallah’s opinion that the incapacity as a result of the injury sustained at work and that his employment was a substantial contributing factor to the lateral hip injuries and that surgery should take place.
Dr Rizkallah has provided a further report dated 22 October 2021[5] where he focuses on the right hip condition solely. He says that he examined the applicant in relation to his right hip complaint on two occasions, namely 28 July 2021 and 25 August 2021. Dr Rizkallah says on both of those occasions the applicant demonstrated pain and stiffness during his range of motion and the diagnosis was of post-traumatic arthritis of the hip. It was his opinion that the applicant’s incapacity was as a direct result of the injuries at work and that surgery should take place.
[5] Application page 83.
Associate Professor Hope
The applicant was referred to Associate Professor Hope by his solicitors. Associate Professor Hope has prepared multiple reports. The first report is dated 7 September 2018.[6] At that stage Associate Professor Hope took a history that the applicant had suffered an injury in a motor vehicle accident on 12 October 2000 in respect of the lumbar spine and right knee. There is no history of complaint made in respect of the hip.
[6] Application page 72.
It appears from the report that no direct observation or enquiry was made into a hip condition and the doctor’s focus is purely on the need for a right knee arthroplasty and treating symptomatology in respect of the lumbar spine.
The second report from Associate Professor Hope is dated 19 March 2019.[7] In that report Associate Professor Hope refers to Dr Rizkallah’s opinion in respect of the total knee replacement and makes comment on it.
[7] Application page 81.
There is a third report dated 30 October 2020.[8] In that report Associate Professor Hope takes a history of brush cutting at work in early 2001 causing left hip pain. The applicant provided a history that he had been using a single strap brush-cutter which made him constantly rotate around the left hip frequently for the last 17 years. The applicant experienced left hip pain which had been gradually increasing and now a left hip arthroplasty was proposed.
[8] Application page 62.
The doctor described the applicant’s condition as severe arthritic left hip pain, with stiffness, weakness and giving way causing a severe functional loss. On examination, there was a painful walking pattern with left hip, severe stiffness and rotational irritability. The doctor diagnosed the applicant as having left hip osteoarthritis which now required a left hip arthroplasty.
So far as the main body of the report, Associate Professor Hope describes the brush cutting work including holding a 5kg brush-cutter which had a single strap over the shoulder. Each rotational movement of the brush-cutter predominantly pivoted over the left hip and the applicant was required to do this work for an average of six hours per day or 30 hours per week for 17 years.
Dr Rizkallah also takes a history in early 2001 of the brush-cutter being used for two hours which induced acute left hip pain which was reported.
Associate Professor Hope opined that the cause of hip injury was a combination of the initial injury in 2001 with subsequent repetitive injuries whilst brush cutting over the next 17 years. He opined that a left total hip arthroplasty was required immediately.
A final report has been prepared by Associate Professor Hope dated 1 November 2021.[9] The report confirms Associate Professor Hope’s previous opinion in relation to diagnosis and also causation. He refers to the opinion of Dr Rizkallah and confirms that his opinion is the same and that is that the whole of the applicant’s condition in his left hip is a result of employment, and that employment is the main contributing factor to the right hip condition.
[9] Application page 58.
Dr Stephens
The applicant consulted with Dr Stephens in December 2010 and he has prepared a report dated 7 December 2010.[10] Dr Stephens takes a history of pain in the trochanteric regions, (which is in the hip region).
[10] Application page 892.
It is obvious[11] that there was a complaint in respect of the left trochanteric ‘regions’, which obviously must mean in both hips. He observed that both hips were clinically normal however there was a diagnosis of left low grade bursitis was doubtful. He observed that a claim had been made alleging aggravation of carpal tunnel, right knee, left shoulder as well as both hips. Dr Stephens does make a conclusion that there was no objective evidence for any pathology in the hips.
[11] Application page 896.
Dr Stephens has turned his mind on two occasions preparing two reports in respect of the right hip injury. The first report is dated 9 November 2021.[12] Dr Stephens did not relate the degenerative changes in the right hip with the truck accident 21 years prior because of the nature of the accident and the absence of right hip complaints over the years and further the absence of significant findings upon examination. He concluded that the applicant’s right hip symptoms were due to early degenerative changes that were seen in overweight diabetic persons possibly with longstanding features of impingement. That is, bilateral osteoarthritis changes were a very common finding in an overweight diabetic.
[12] Reply page 1,059.
In the second report dated 17 November 2021[13] Dr Stephens addresses the nature and conditions aspect of the claim and once again does not make any conclusion favourable to the applicant in respect of his claim. It is quite clear that Dr Stephens in his opinion relies on an understanding that there had been an absence of right hip complaint over the years. Once again he also links the applicant’s diabetic and overweight condition as being the true causes of right hip pathology.
[13] Reply page 1,064.
Dr Azar
Dr Azar is the applicant’s treating general practitioner.
Dr Azar has prepared a report dated 22 October 2021. He treated the applicant for a significant period commencing in 2000.[14] In that report Dr Azar observes that the applicant has ongoing pain and dysfunction in his right hip and understands that Dr Rizkallah proposes a total right hip replacement. He opines that the applicant’s right hip injuries have developed as a result of compensatory loading effects of both hips as a result following his right knee symptomatology. He opines that the altered dynamics associated with the right knee injury have accelerated the applicant’s osteoarthritic condition in his right hip and as such employment is a substantial contributing factor to the lateral hip pathology.
[14] Application page 95.
It should also be observed that in the applicant’s oral submissions made by Ms Grotte of counsel, I was taken extensively through the clinical notes of Dr Azar. What is apparent is that Dr Azar takes histories related to bilateral hip injuries.[15]
[15] Transcript pages 16-24.
The following entries are particularly relevant. On 10 January 2006,[16] the applicant was referred for an X-ray of the right hip developing over some two days. On 25 August 2008[17] there was a reference in relation to bilateral hip pain. It should be observed that it is difficult to read the doctor’s notes however there appears to be ”hips” written in plural. On 9 November 2010 there is a reference to bilateral hip pain. On 30 May 2011[18] there is a reference to right hip. On 4 October 2011 there is a reference to “hips” in plural. On 9 October 2011[19] there is a reference in relation to bilateral hip pain. On 21 January 2014[20] there is a reference to hips. Then on 3 November 2016[21] there is a further reference to hips.
[16] Application page 979.
[17] Application page 984.
[18] Application page 990.
[19] Application page 992.
[20] Application page 995.
[21] Application page 997.
The applicant submits that there were continuing complaints in respect of the hips contained in those treating notes, and based on those submissions and the observation of the clinical notes it does appear that that is indeed so.
Dr Richard Crane
The applicant was referred to Approved Medical Specialist, Dr Richard Crane in respect of an injury on 12 October 2000 and also the nature and conditions of employment. One of the body parts referred was the right leg at or above the knee.
The symptomatology reported to Dr Crane included a problem in his right knee which the applicant felt was “uncomfortable and gives way”. There is no history in that report of any symptomatology in respect of the hip, however there is a finding that the applicant had suffered a 10% permanent loss of use of the right knee.
Discussion
The first question is what is the cause of the right hip condition? To my mind the applicant has provided extensive evidence which has not been challenged by the respondent as to the heavy nature of his duties at work. This includes the using of the whipper-snipper, there is no reason for me not to accept the applicant’s description of his duties, nor has it been put in dispute by any contradictory evidence from the respondent.
We then have the opinions of both the treating surgeon, Dr Rizkallah, and his general practitioner, who both support the applicant’s claim in respect of an aggravation of an underlying condition as required by s 4(b)(ii) of the 1987 Act. That is, the weight of the evidence is the applicant’s work was the main contributing factor to the aggravation.
The opinion of Dr Stephens to my mind does not really engage with the applicant’s duties at work, nor does he have any understanding that there are indeed reports of right hip pain complaints over the years, to the extent that the applicant was referred for an X-ray of his right hip in 2006.
To my mind the applicant’s treating doctors, Dr Azar and Dr Rizkallah should be accepted as they provided treatment to the applicant over many years and were in the best position to be able to understand both his complaints and the nature of his work conditions. I find their opinions entirely persuasive having treated the applicant over many years and understanding his work duties.
The opinions of Dr Azar and Dr Rizkallah are also supported by Associate Professor Hope. Associate Professor Hope also understands the nature of the applicant’s work which included the use of the brush-cutter and whipper-snipper and the impact on the applicant’s hips by way of rotational overuse over many years.
I therefore find that the applicant has sustained an injury in accordance with s 4(b)(ii) of the 1987 Act.
The legislation
Section 60 of the 1987 Act provides:
“60 COMPENSATION FOR COST OF MEDICAL OR HOSPITAL TREATMENT AND REHABILITATION ETC
(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Burke CCJ in Rose[22] considered what reasonably necessary treatment was. In the context of section 10 of the Workers Compensation Act 1926[23]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition on restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense an employer can only be liable for the cost of reasonable treatment.”
[22] Rose v Health Commission NSW (1986) 2 NSWCCR 32.
[23] Paragraph 42.
In Diab v NRMA Ltd[24] Deputy President Roche cited Rose with approval. He summarised the principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose namely: (a) the appropriateness of the particular treatment; (b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment; (d) the actual or potential effectiveness of the treatment, and (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.”[24] [2004] NSWCCPD 72 (Diab).
Of some assistance in determining disputes such as the present one, Deputy President Roche helpfully stated:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
It is accepted that a condition can have multiple causes, but the applicant must establish that the injury materially contributed to the need for surgery. This was confirmed by Deputy President Roche in Murphy v Allity Management Services Pty Ltd[25], where he stated:
“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’…… The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Ms Murphy only has to establish, applying the common sense 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.”
[25] [2015] NSWCCPD 49 (Murphy).
The legislation prescribes that the proposed surgical treatment must be reasonably necessary as a result of injuries sustained by the applicant during the course of his employment with the respondent.
The applicant is required to establish the injury that the injury he sustained to his right hip while working with the respondent has materially contributed to the need for the proposed surgical treatment.[26]
[26] Murphy v Allity Management Services Pty Ltd
The evidence once more of Dr Rizkallah and Dr Azar and Associate Professor Hope all support a finding that the recommended surgery is reasonably necessary for the right hip injury and that his employment has materially contributed to the need for the surgery.
It seems to me that the applicant has described in great detail the heavy nature of the work that he performed for the respondent and there has been no challenge to that description. The respondent is critical of the applicant’s evidence on the basis that he does not specify how long after the accident he began to feel right hip pain nor has he described how many hours he was required to use the brush-cutter on a daily basis. The respondent also points out while the applicant was performing his edging work he would not have the same rotational force on his hips. These criticisms are not fatal to the applicants case. He has described the heavy nature of his work, which it is accepted by his treating surgeon materially contributed to the need for surgery.
I bear in mind that Dr Rizkallah is a practising surgeon, if it was his view that the applicant’s weight or diabetic condition contributed to the applicant’s need for surgery then this would be a matter of some discussion in his reports. There is an absence of any discussion from Dr Rizkallah in respect of those matters as making any contribution to the development or the need for the surgery.
The respondent is also critical of Dr Azar’s opinion in respect of the consequential condition. His opinion however is of some significance in relation to the need for surgery in that he prescribes that surgery is reasonably necessary.
The respondent is also critical that in some of the reports from Associate Professor Hope, indeed his earliest reports, there is no reference to any injury to the applicant’s right hip whilst working for the respondent. They are critical of Associate Professor Hope’s assumption that the applicant had performed for the respondent for 19 years when it appears that it might be some 13 years. They are also critical of Associate Professor Hope as understanding that the applicant performed brush cutting work for an average of six hours per day for 30 hours per week for 17 years.
This is a history given by the applicant and I cannot understand why the respondent, if they truly wanted to take issue with such an assumption, have not put that in issue. They also take issue with the brush-cutter weighing 5kg however have no evidence to say that is not a true assumption in the applicant’s evidence.
I bear in mind that the applicant does not need to present a perfect case. They only need to satisfy the balance of probabilities and I find that they have satisfied that threshold. I am persuaded by the opinion of Dr Rizkallah primarily, together with that of Associate Professor Hope which is also supported by the General Practitioner. The applicant has discharged the onus of proof on the dispute before me.
On balance I find that the proposed surgery is reasonably necessary.
Late Notice
Section 254 of the 1998 Act provides the following:
“WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998 - SECT 254
Notice of injury must be given to employer
254 NOTICE OF INJURY MUST BE GIVEN TO EMPLOYER
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened.”
The section operates to preclude a claimant from receiving compensation if notice of injury was not given to the employer as soon as possible after the injury happened, that is, the injurious event.[27]
[27] Warwick Hobart v Pietrazak [2006] NSWCCPD 315.
The applicant’s evidence[28] indicates that he felt a dull aching pain in his right hip over a period of time.
[28] As identified in the submissions from the applicant dated 27 July 2022.
What is determinative, to my mind, is that the applicant has provided certificates of capacity notifying the respondent of an injury to his hips as far back as 2014. I therefore find it difficult to understand that the respondent has not been given notice of the right hip injury, which clearly on the status of the medical certificates has caused an incapacity for work, forming the basis of the claim.
I also bear in mind that the applicant was able to continue to work with the respondent 2016 and the certificates were provided in 2014. This is entirely relevant as I have found that the applicant has suffered an injury by way of an aggravation of an underlying condition.
I therefore do not find that the applicant is barred from seeking compensation pursuant to s60 of the 1987 Act.
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