Brassington v Blacktown City Council - [2021] NSWPIC 78

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brassington v Blacktown City Council [2021] NSWPIC 78
APPLICANT:	Gregory Brassington
RESPONDENT:	Blacktown City Council
MEMBER:	Ms Jacqueline Snell
DATE OF DECISION:	14 April 2021
CATCHWORDS:	WORKERS COMPENSATION- The applicant claims the cost associated with total left hip arthroplasty; the respondent disputes the applicant has sustained work-related left hip injury and the respondent disputes the surgical treatment is reasonably necessary treatment for the applicant’s left hip injury; Held – the applicant sustained injury to his left hip in the course of employment with the respondent; the applicant’s employment with the respondent is the main contributing factor to injury; the total left hip arthroplasty is reasonably necessary treatment for the injury the applicant has sustained to his left hip.
DETERMINATIONS MADE:	1. The applicant sustained injury to his left hip in the course of his employment with the respondent. The applicant’s employment with the respondent is the main contributing factor to injury. The deemed date of injury is in or about August 2016. 2. The applicant requires medical and related treatment as a consequence of the injury he has sustained to his left hip. The total left hip arthroplasty recommended by Dr Sherif Rizkallah is reasonably necessary treatment resulting from the injury the applicant sustained to his left hip with deemed date of injury of in or about August 2016. The respondent is to pay the applicant’s medical or related treatment under s 60 of the Workers Compensation Act 1987 resulting from injury he sustained to his left hip with deemed date of injury of in or about August 2016.

STATEMENT OF REASONS

BACKGROUND

Gregory Lance Brassington (the applicant) was employed by Blacktown City Council (the respondent) as a maintenance worker between 1999 and 2018. His duties involved driving, garden maintenance and cleaning. He has not worked with the respondent since mid 2016.
The applicant sustained injury in a motor vehicle accident on 12 October 2000 (MVA) in the course of his employment with the respondent. The applicant has brought previous proceedings in the Commission, being Matter Number 2009/19. In these previous proceedings, the Arbitrator determined on 12 July 2019 that the right knee surgical treatment proposed by Dr Sherif Rizkallah (Dr Rizkallah) was reasonably necessary as a result of injury sustained on 12 October 2000 in the course of his employment with the respondent[1].
[1] Application to Resolve a Dispute (ARD) at page 5.

The circumstances of injury the subject of the applicant’s current claim before the Commission is described in his application in the following terms:
“Following the accident, our client engaged in repetitive and heavy work which repetitively placed strain on his right knee, lower back, left shoulder and hip”.
The date of injury is noted to be 12 October 2000 being the date of the MVA.
The applicant’s current claim for compensation before the Commission involves a claim for the costs associated with total left hip arthroplasty recommended by Dr Rizkallah (the surgical treatment).

The respondent issued notices in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 28 September 2020 and 19 November 2020. The respondent disputed the alleged injury the applicant had sustained to left hip resulted from his employment with the respondent. The respondent also disputed the surgical treatment was reasonably necessary treatment for the alleged injury the applicant had sustained to his left hip.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) alleged injury to the left hip, and
(b) whether the surgical treatment is reasonably necessary treatment for the alleged injury to the left hip.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration hearing on 11 February 2021. Mr McManamey of counsel appeared for the applicant, instructed by Ms Elmasri, solicitor. Mr Doak of counsel appeared for the respondent, instructed by Mr Murphy, solicitor. The applicant was also present.

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.

When it became evident that the arbitration hearing would not conclude during the afternoon of 11 February 2021, I issued directions that the parties lodge and serve written submissions, which has now occurred.

EVIDENCE

Documentary evidence

Admissibility of the forensic medical reports of Dr Stephen

Relevant to the documentary evidence before the Commission, the respondent sought to rely on the reports of Dr Stephen dated 1 April 2008, 10 August 2009, 8 September 2009, 21 January 2010, 7 December 2016, 25 July 2017, 14 December 2018 and 6 May 2019, and also the reports of Dr Rimmer dated 25 August 2020 and 16 December 2020. Both Dr Stephen and Dr Rimmer are orthopaedic surgeons who have provided independent medical reports.

The applicant submits that pursuant to former Clause 44 of the Workers Compensation Regulation 2016 the respondent is only entitled to rely on the independent medical reports provided by either Dr Stephen or Dr Rimmer, and as the respondent has elected to rely on those independent medical reports provided by Dr Rimmer, those medical reports provided by Dr Stephen were necessarily excluded by operation of the regulation.

The terms of Clause 44 were mandatory. There is no discretion to admit a medical report in contravention of Clause 44.

Clause 44(1) stated that:
In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
Clause 44(4) defined “forensic medical report” in the following terms:

(a)    means a report from a speicalist medical practitioner who has not treated the worker and that has been obtained for the purposes of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)    incudes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998, and
(c)    does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.

The respondent pressed for the admission and reliance on the reports of Dr Stephen.

The respondent submits the relevant focus of Clause 44 was the particular proceedings on a claim. He said these current proceedings are for the cost of the surgical treatment based on a frank injury and the aggravation of a disease process during the course of the applicant’s employment with the respondent. The respondent submits the reference in Clause 44(4)(a) was to the claim or dispute and must be read to mean the claim or dispute the subject of the proceedings referred to in Clause 44(1). This means that in the context of these current proceedings, the forensic medical reports must have been obtained for the purpose of proving or disproving an entitlement for the cost of the surgical treatment. Having regard to the definition of a forensic medical report in Clause 44(4)(a), the respondent submits that on a plain reading of the medical reports provided by Dr Stephen that were sought to be relied on by the respondent in these particular proceedings, Dr Stephen’s medical reports did not meet the definition of a forensic medical report as they had not been obtained for the purpose of proving or disproving an entitlement for the cost of the surgical treatment. The respondent further submits the medical reports of Dr Stephen also fell within the exclusion provided in Clause 44(4)(c) as on a plain reading of the medical reports, they were obtained in relation to claims for compensation made by the applicant as a result of injury sustained to a number of other body parts. Although reference was made to the applicant’s left hip by Dr Stephen in his medical reports, this was in the context of Dr Stephen’s examination of the applicant relevant to those other body parts. The respondent submits such further submission was supported by the reference made to Dr Stephen’s reports in the Reasons for Determination of the Arbitrator on the applicant’s claim for compensation resulting from injury to his right knee.

I have considered the submissions made by counsel. I note that in his previous proceedings brought in the Commission relevant to recommended surgical treatment to his right knee, the applicant relied on the reports of Dr Stephen dated 1 April 2008, 10 August 2009, 8 September 2009, 21 January 2010, 7 December 2016, 25 July 2017, 14 December 2018 and 6 May 2019. I accept the respondent’s submission that in the context of these current proceedings, the medical reports of Dr Stephen that the respondent pressed for admission and sought to rely are not forensic medical reports coming within the definition of Clause 44 of the Workers Compensation Regulation 2016.

I have allowed the reports of Dr Stephen dated 1 April 2008, 10 August 2009, 8 September 2009, 21 January 2010, 7 December 2016, 25 July 2017, 14 December 2018 and 6 May 2019 to be admitted into evidence before the Commission.
The following documents are in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s submissions lodged under Application to Admit Late Documents dated 11 March 2021;
(d)    respondent’s submissions dated 25 March 2021, and
(e)    applicant’s submissions in reply lodged under Application to Admit Late Documents dated 31 March 2021.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Review of the evidence

A brief summary of the evidence follows.

The applicant’s statement

In his statement dated 15 April 2019[2] the applicant explains he commenced working with the respondent in 1999 as a maintenance worker. He says his duties involved driving, garden maintenance and cleaning. He describes his duties as physically challenging and he would often go home sore. He says most of his duties involved bending and lifting.
[2] ARD at page 1.

The MVA in which the applicant was involved caused “a great deal of pain” in his low back and right knee. The applicant was off work for a week, returning to his usual duties which aggravated his symptoms. Following the MVA the applicant began experiencing symptoms in his hip, and his general practitioner, Dr Azar, referred him for physiotherapy treatment for his low back, right knee and right hip. He came to steroid injection in his right knee, with temporary relief, and arthroscopic right knee partial medial meniscal meniscectomy under the orthopaedic care of Dr Rizkallah on 6 November 2006.

The applicant returned to his usual duties, which again aggravated his symptoms, and in about March 2008 he began experiencing symptoms in his left shoulder and hand numbness. He came to left shoulder surgical treatment under the care of Dr Rizkallah on 13 December 2008 as well as left carpal tunnel decompression. In or about 2009 the applicant noticed reoccurring catching of his left middle finger, with diagnosis of trigger finger. In or about late 2010 the applicant began experiencing numbness in his right hand.

In 2011 the applicant began to experience pain in his left hip, which was similar to that experienced in his right hip, with Dr Azar suggesting to him the symptoms were due to his work duties with the respondent. The applicant says that with both hips symptomatic he had “permanent work restrictions that I could not undertake any tasks which required repetitive bending or lifting and I could not carry any items weighing above 5 kilograms”.
At the time of making his statement the applicant says both his hips were sore, and his low back, right knee, left knee and left shoulder are symptomatic. He takes analgesic medication daily. His employment with the respondent had been terminated in 2018 on the basis he was unfit for his pre-injury duties “even though he had done various roles over the years”. Dr Rizkallah has recommended a total right knee replacement.

In his short supplementary statement dated 25 November 2020[3] the applicant confirms that following the MVA he “began to experience a dull, aching pain in my right hip” which he noticed to be most painful when he was bending, twisting or repetitively lifting while working. Physiotherapy treatment did not provide complete relief. At the time of making his statement both of the applicant’s hips remained symptomatic, and Dr Rizkallah had recommended total left hip replacement.
[3] ARD at page 4.

Position descriptions

The position descriptions of Open Space Driver and Park Worker relevant to the applicant’s employment with the respondent[4] set out the duties required of the applicant which include but are not limited to the seasonal preparation, maintenance and renovation of all Open Space areas, the making safe of any hazards within those areas and the operation and maintenance of a variety of plant and equipment.

Treating medical evidence
Dr Azar and Dr Soo
[4] Reply at pages 159 and 164.

Dr Azar and Dr Soo are the applicant’s general practitioners. The applicant has been under their care for many years. In a report dated 4 October 2018[5] Dr Azar relevantly notes the applicant developed right hip pain at the time of the MVA and subsequently, which was reportedly described as “dull, aching, exacerbated by bending, trunk twisting, repetitive lifting and disturbing sleep”. He was treated conservatively and x-rays of both hips revealed enthesopathy of the right hip and mild osteoarthritis of both hips. While Dr Azar reports the applicant developed “similar pain in his right hip in 2011” it is evident that Dr Azar mistakenly referred to the development of symptoms in the right hip rather than the left hip as he goes on to report clinical features being consistent with left hip tendinitis. Dr Azar provides opinion the applicant’s bilateral hip injuries “are solely work related”, with the left hip injury having occurred “as a result of repetitive manual lifting and handling tasks at work”. He notes the applicant’s permanent restrictions included no repetitive bending or lifting or carrying above 5 kg.
[5] ARD at page 42.

In the clinical records provided by the medical practice out of which Dr Azar and Dr Soo practice there is a letter of referral from Dr Soo dated 16 November 2010 addressed to Dr Rizkallah[6] in which reference is made to the applicant’s presenting problem including reference to his left hip. In a letter of referral from Dr Azar dated 30 September 2011 addressed to Amcl Mt Druitt[7] there is reference to the applicant’s presenting problem including reference to work related left hip pain, with the applicant on light duties with a maximum lifting weight of 10 kg. In a letter of referral from Dr Azar dated 3 February 2017 addressed to Crystal Physiotherapy[8] there is reference to the applicant’s presenting problem including reference to hip pain. In a letter of referral from Dr Azar dated 16 March 2017 addressed to Leichardt Physiotherapy[9] there is reference to the applicant’s presenting problem including reference to bilateral hip injuries. In a letter of referral from Dr Soo dated 2 June 2017 to Dr Rizkallah[10] there is reference to the applicant’s presenting problem including “hips pain”. In a letter of referral from Dr Azar dated 5 May 2020 to Dr Rizkallah[11] the applicant’s presenting problem is specifically bilateral hip pain.
[6] ARD at page 265.
[7] ARD at page 318.
[8] ARD at page 461.
[9] ARD at page 471.
[10] ARD at page 479.
[11] ARD at page 619.

The clinical records include a WorkCover Certificate of Capacity dated 5 July 2013[12] that included diagnosis of work related injury/disease “left hip pain” and a number of WorkCover Certificates of Capacity after this time that include diagnosis of work related injury/disease “Hips injuries”.
[12] ARD at page 341.

The clinical records include a letter dated 3 February 2017[13] in which Dr Azar confirms he has been treating the applicant relevant to his work related injuries for the past several years and makes reference to his current issues including “bilateral hip pain”. Dr Azar provides comment that the applicant believed the respondent’s “inability to put him on the toilet run has placed him in a situation where he was forced to perform more strenuous activity which has compounded his injuries”. The records also include a letter dated 5 July 2017[14] in which Dr Azar relevantly confirmed the applicant was attending Leichardt hydrotherapy pool to treat his hip injuries.
[13] ARD at page 463.
[14] ARD at page 485.

The clinical records include a letter dated 11 April 2014 from the applicant’s cardiologist, Dr Fernandes[15] in which he makes reference to the applicant’s work duties as “heavy manual labour” and also a letter dated 11 August 2014 from the Diabetes Clinic[16] which makes reference to the applicant’s “active work life”.
[15] ARD at page 362.
[16] ARD at page 381.

The clinical records include a Medicare Older Person Health Assessment dated 6 May 2019[17] that identifies the applicant’s activities of daily living were in part limited by hip pain and also a letter dated 3 November 2020 from the applicant’s endocrinologist, Dr Preda[18] in which she makes reference to the applicant being under considerable stress with “his ongoing joint issues and work issues” and the fact he is unable to walk as much as before due to his hip pain.

Dr Rizkallah
[17] ARD at page 560.
[18] ARD at page 661.

Dr Rizkallah is the applicant’s treating orthopaedic surgeon. The applicant has been under Dr Rizkallah’s care for many years, which is evidenced by his many reports before the Commission. Relevant to the issues currently before the Commission, in a letter dated 11 June 2020 addressed to the respondent[19], Dr Rizkallah reports he examined the applicant on 10 June 2020 with the applicant harbouring concern about both his hips “which he injured during the course of his employment”. Dr Rizkallah cautions the applicant was not improving with conservative treatment and accordingly had been referred for x-ray. Dr Rizkallah advised the respondent he would “keep you informed of the outcome”. Dr Rizkallah duly reports on 18 June 2020[20] that bilateral x-ray demonstrated moderate chondral injury “with the left side worse than the right side” and with failure of conservative treatment Dr Rizkallah sought the respondent’s approval of the surgical treatment, under cover of letter dated 2 July 2020[21].
[19] ARD at page 625.
[20] ARD at page 626.
[21] ARD at page 31.

In response to specific request, in a report dated 22 October 2020[22] Dr Rizkallah confirms he examined the applicant relevant to hip problems on 10 June 2020, 17 June 2020 and 1 July 2020. He reports the applicant provided a history of injury both hips on multiple occasions during the course of his employment with the respondent, and he was not improving with ongoing conservative treatment. He describes the applicant’s bilateral hip pain as “slightly worse on the left side”. Dr Rizkallah provides opinion the applicant’s employment with the respondent is a substantial contributing factor to his bilateral hip injuries. He provides opinion the condition the applicant suffers in his hip is directly related to his employment with the respondent. He considers the proposed left total hip replacement is reasonably necessary treatment and says he disagreed with opinion provided by Dr Rimmer (discussed below). He says prognosis following surgery “should be excellent” and cautions prognosis without surgery “is extremely guarded”.
[22] ARD at page 34.

Dr Rizkallah has provided other relatively recent reports with respect to the applicant dated 12 December 2018[23] and 5 March 2019[24], neither of which make reference to the applicant’s left hip.
[23] ARD at page 35.
[24] ARD at page 40.

Crystal physiotherapy

The report dated 26 January 2007 prepared by Hai Le[25] makes no reference to the applicant’s left hip symptoms.
[25] ARD at page 65.

Diagnostic imaging

The applicant was referred for x rays on 24 September 2011, with the x ray report dated 29 September 2011 noting pain, which includes left hip pain.

Independent Medical Evidence
Dr Endrey-Walder

There are a number of reports prepared by Dr Endrey-Walder that are before the Commission. They are dated 16 January 2008[26], 5 June 2009[27] and 12 August 2009[28].
[26] Reply at page 19.
[27] Reply at pages 28, 35 and 37.
[28] Reply at page 38.
In his initial report, Dr Endrey-Walder relevantly notes the applicant’s work duties with the respondent were “labour intensive” and following the MVA his “left hip started aching”. The applicant reports at initial assessment his left hip ached intermittently and says he thought it happened because he was favouring his right leg. On bilateral hip examination, the applicant complains of some aggravation on the left side at the limit of external rotation, and Dr Endrey-Walder recommends x-ray investigation.

In his reports relevant to subsequent assessment, Dr Endrey-Walder notes the applicant’s complaint of intermittent aching in his left hip. On examination, Dr Endrey-Walder notes the generalised stiffness on movement in every direction and also notes the applicant was “exquisitely tender over the tip and the posterior aspect of the left trochanter” which he says was suggestive of trochanteric bursitis. He suggests ultrasound investigation of the left greater trochanter “may be worthwhile” and as before recommends x-ray of the applicant’s hips. At that time, Dr Endrey-Walder provides assessment of whole person impairment of the applicant’s left hip at 3% relevant to greater trochanteric bursitis, based he says on “the pathology and because it at times interferes with his ambulation, causing him to limp”.

Dr Stephen

There are a number of reports prepared by Dr Stephen that are also before the Commission. They are dated 1 April 2008[29], 10 August 2009[30], 8 September 2009[31], 21 January 2010[32], 7 December 2016[33], 25 July 2017[34], 14 December 2018[35] and 6 May 2019[36].
[29] Reply at page 40.
[30] Reply at page 45.
[31] Reply at page 52.
[32] Reply at page 54.
[33] Reply at page 59.
[34] Reply at page 64.
[35] Reply at page 66.
[36] Reply at page 70.

In his initial report Dr Stephen describes the applicant as working fulltime duties with the respondent and notes his complaint at assessment includes pain in the left buttock and trochanteric region which the applicant describes as hip pain. On examination, hip movements on both sides were reported as symmetrical.

In his report following subsequent assessment on 10 August 2009, Dr Stephen reports the applicant told him that he began to notice left hip pain some weeks after his right knee surgery, and he now has constant pain in the region. On examination, hip movements on both sides were again reported as symmetrical and painless, and there was no tenderness in the region of the left greater trochanter. Dr Stephen says he could find no objective evidence of pathology relevant to the applicant’s hips and says it was likely the left hip pain of which he complains is referred from his low back condition, which was constitutional in nature. There was no permanent impairment relevant to the applicant’s left hip. Dr Stephen says Dr Endrey-Walder’s diagnosis of trochanteric bursitis is doubtful as on his examination there was no tenderness in the region of the left greater trochanter and there was no limp.

In his report following assessment on 21 January 2010, Dr Stephen describes the applicant as continuing to work fulltime duties, but with a recently imposed 5 kg lifting restriction. He notes the applicant continues to complain of pain in the region of the left greater trochanter but examination again demonstrates no complaint of pain on extreme movements of the hip, which were full and symmetrical, and no trochanteric tenderness.

In his report following assessment on 7 December 2016, Dr Stephen notes the applicant was still employed by the respondent but not working, having last worked 3-4 months previously. He still complains of hip pain, which Dr Stephen says us “really low back and buttock and trochanteric pain rather than true hip pain”. Examination demonstrates no significant reduction of hip movement on either side, and while Dr Stephen says there is no objective evidence of pathology relevant to either hip, he accepts on this occasion “[T]here may a mild trochanteric bursitis”. In this report Dr Stephen relevantly accepts the applicant’s pre-injury duties with the respondent included some which were “quite heavy”.

In his report following assessment on 12 December 2018, Dr Stephen notes the applicant had not returned to work since ceasing work in 2016 and presented with complaint that includes bilateral hip pain “which is in the region of the iliac crests and trochanteric region”. Examination demonstrates no definite limp and the applicant’s hips are reportedly “clinically normal”.

Dr Rimmer

Dr Rimmer provides two independent medical examiners’ reports relevant to the issues currently before the Commission. His substantive report is dated 25 August 2020[37] and his supplementary report is dated 16 December 2020[38]. In his substantive report, Dr Rimmer reports that 6 November 2008 is a date of note, with the applicant claiming to have injured his left hip at work. He notes Dr Rizkallah has recommended a left total hip replacement. Following clinical examination, which finds the applicant’s left hip to be completely normal and review of the x-ray dated 17 June 2020, which he says demonstrates at most minimal degenerative osteoarthritis of the left hip articulation, Dr Rimmer says further investigation in the nature of a nuclear bone scan and a cortisone injection to the left hip articulation is required to assist with provision of opinion.
[37] Reply at page 6.
[38] Reply at page 348.
In response to specific questioning, Dr Rimmer says he did not consider the applicant had suffered a frank injury to his left hip, with his explanation grounded in the independent medical report dated 5 June 2009 provided by Dr Endrey-Walder referred. As to whether the applicant’s employment was the main contributing factor to the aggravation of any disease injury the applicant suffered in his left hip, Dr Rimmer says “[H]ighly unlikely however I require further investigation”. As to whether the applicant’s left hip injury was secondary to any other injury sustained in the course of his employment with the respondent, Dr Rimmer says “[H]ighly unlikely”. As to whether the surgical treatment is reasonably necessary treatment, Dr Rimmer says “[H]ighly unlikely however I require a bone scan”.

In his supplementary report, without the opportunity to review the nuclear bone scan or results from the cortisone injection he recommended, Dr Rimmer says that at the time of his assessment of the applicant, his examination of the left hip was normal and the x-ray was normal. He also made reference to Dr Enrey-Walder’s diagnosis of left greater trochanter bursitis, which he says had “no relationship with any alleged hip pathology”. In response to specific questioning he says he did not consider the applicant’s employment with the respondent caused or was the main contributing factor to any disease injury the applicant suffered in his left hip and he did not consider the surgical treatment is reasonable or necessary treatment.

Dr Hope

Dr Hope also provides a number of independent medical examiners’ reports. His first report dated 7 September 2018[39] and his supplementary report dated 19 March 2019[40] make no mention of the applicant’s left hip injury.
[39] ARD at page 54.
[40] ARD at page 63.

Dr Hope’s report dated 30 October 2020[41] is relevant to the issues currently before the Commission. In this report Dr Hope describes the applicant’s work duties with the respondent over 19 years as involving “driving, garden maintenance and cleaning”. He describes the garden maintenance duties to include “brush-cutter work”. He explains a brush-cutter weighs 5 kg, has a single strap over the shoulder and each rotational movement of the brush-cutter predominantly pivots over the left hip. He says “[C]onstant left hip pivoting was required for an average of 6 hours per day or 30 hours per week for 17 years”.
[41] ARD at page 46.

Dr Hope reports that in early 2001 the brush cutter was used for two hours, which induced acute severe left hip pain that was reported. Prior to this time, the applicant’s left hip had been asymptomatic. Dr Hope reports the applicant consulted with his general practitioner, took time off work and received physiotherapy treatment. Dr Hope reports the applicant returned to his pre-injury duties “with ongoing pain in his left hip” that marginally increased each time the brush-cutter was used over the next 17 years. Dr Hope reports the applicant’s pain escalated to a severe level in June 2020, with Dr Rizkallah consulted and left total hip replacement recommended. Following clinical examination and review of the x-ray of the left hip undertaken on 17 June 2020, Dr Hope provides diagnosis in terms of left hip osteoarthritis and says a left total hip replacement was required. In response to specific questioning, Dr Hope says the cause of the applicant’s left hip injury was a combination of the initial brush cutting injury occurring in 2001 and subsequent repetitive injuries over the ensuing 17 years. He considers the applicant’s employment with the respondent is a substantial contributing factor.

Medical Assessment Certificate

The Medical Assessment Certificate dated 5 September 2008[42] makes no reference to the applicant’s left hip injury.

Submissions
[42] ARD at page 66.

Both counsel have provided written submissions which I have considered. I am grateful to counsel for the assistance provided to me in this matter. As copies of counsel’s submissions have been made available to the parties, I merely confirm here that the thrust of counsels submissions went to the acceptance or otherwise by the Commission as to whether the applicant has sustained a work-related injury to his left hip, and if so whether the surgical treatment is reasonably necessary treatment for that work-related injury.

Determination

Injury

The applicant has the onus of proving he sustained injury to his left hip arising out of or in the course of his employment with the respondent. This is a question of fact in his matter and consideration of his statements and all of the medical evidence is required. In Ngueyn v Cosmopolitan Homes (NSW) Pty Limited [43] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR s91 at 712.”
[43] [2008] NSWCA 246.
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) relevantly defines injury as a personal injury arising out of or in the course of employment, including the contraction of, or aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the contracting of the disease or the aggravation, acceleration, exacerbation of the disease.
Relevant to the issue of causation in Kooragang Cement Pty Ltd v Bates[44], Kirby J said:
“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 case 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 commonsense 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.”
[44] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Despite Dr Hope reporting the applicant experienced pain in his left hip in early 2001, the clinical records of Dr Azar and Dr Soo demonstrate the applicant initially complained of left hip pain on 25 October 2008. It is evident from these clinical records that the applicant continued to complain of left hip pain from time to time after that, with an intensifying of symptoms ultimately resulting in recent re-referral to Dr Rizkallah who recommended surgical treatment.
With the referral for physiotherapy by Dr Azar on 30 September 2011 relevant to work related left hip pain and a WorkCover Certificate of Capacity issued as early as 5 July 2013 that included diagnosis of left hip pain, it is apparent Dr Azar formed the opinion at quite an early stage that the applicant had sustained injury to his left hip in the course of his employment with the respondent. Such opinion is confirmed in his report of 4 October 2018. While I am mindful of President Keating’s caution in DHL Excel Supply Chain (Australia) Pty Ltd vHyde[45] regarding the probative value of medical certificates issued by an applicant’s treating doctor, Dr Azar has provided a report in which links the applicant’s left hip pain with his “repetitive manual lifting and handling tasks at work”.
[45] [2011] NSWWCCPD 22 at [93].
The applicant was first referred for specialist review with Dr Rizkallah with complaint that included left hip pain under cover of letter from Dr Soo dated 16 November 2010. He was re-referred with complaint that included “hips pain” under cover of letter from Dr Soo dated 7 November 2017. He was re-referred again with complaint specific to bilateral hip pain under cover of letter from Dr Azar dated 5 May 2020. It is apparent from Dr Rizkallah’s report to the respondent dated 11 June 2020 following his review of the applicant on 10 June 2020 that Dr Rizkallah is also of the opinion the applicant sustained injury to his left hip in the course of his employment with the respondent. Such opinion is confirmed in his report dated 22 October 2020. While Dr Rizkallah may have failed to provide reasoning for his support of a causal link between the applicant’s employment with the respondent and his left hip injury, I am of the view he is allowed to use his general experience and knowledge as an expert even though it is not stated in his report. Spiegelman CG (Giles and Ipp JJA agreeing) explained in Australian Security and Investment Commission v Rich[46] a [170]:
“[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”.
[46] [2005] NSWCA 152.
The independent medical reporting of both Dr Endrey-Walder and Dr Stephen demonstrate chronic complaint of left hip pain by the applicant. In his report dated 16 January 2008 Dr Endrey-Walder notes the applicant’s left hip had become symptomatic following the MVA and ultimately provides diagnosis of trochanteric bursitis, with which Dr Stephen eventually agrees is a possibility. Of import however is that the applicant’s current diagnosis is one of osteoarthritis, not trochanteric bursitis. Dr Endrey-Walder describes the applicant’s duties with the respondent as “labour intensive” and Dr Stephen accepts some of the applicant’s duties with the respondent were “quite heavy”.
Dr Hope was provided with the opportunity to assess the applicant in his capacity as independent medical examiner relevant to his left hip condition, with Dr Hope providing a history of the applicant engaged in using a brush cutter for 6 hours each day for 17 years. I do not accept the respondent’s submission this history is not consistent with that provided by the applicant in his evidentiary statements. I agree with the applicant’s submission that the history that Dr Hope provides “adds more detail” to the information that the applicant provides in his statement and there is no evidence before the Commission to dispute the history that the applicant provides in his statement or the history Dr Hope provides in his report. Dr Hope provides diagnosis of left hip osteoarthritis, which he accepts has been caused by the applicant’s work duties over the years. He provides opinion the applicant’s employment with the respondent is a substantial contributing factor to injury.
Dr Rimmer was also provided with the opportunity to assess the applicant in his capacity as independent medical examiner relevant to his left hip condition, with Dr Rimmer providing a history of the applicant sustaining work-related injury to his left hip on 25 October 2008, which accords with the applicant’s initial complaint of left hip pain to his general medical practitioner. Dr Rimmer provides no history of the work duties undertaken by the applicant in the course of his employment with the respondent. While Dr Rimmer does not accept the applicant suffered work-related injury to his left hip, either by way of frank injury or aggravation of pre-existing osteoarthritis, such opinion is provided without the benefit of review of the further investigations he had requested to assist him in providing opinion.
The clinical records demonstrate the applicant has been under the general medical care of Dr Azar and Dr Soo since early 1996 and that the applicant has been under the specialist orthopaedic care of Dr Rizkallah since 2006. With such considerable involvement in the applicant’s treatment, I consider both Dr Azar’s opinion and Dr Rizkallah’s opinion on causation to be persuasive. I do not accept the respondent’s submission the opinion of Dr Azar should be rejected on the basis he has only provided an unsubstantiated assertion, as I am of the view in circumstances where there is no challenge to the nature of the applicant’s work duties, Dr Azar’s opinion is not unsubstantiated. Neither do I accept the respondent’s submission Dr Rizkallah’s opinion should be given little weight in circumstances where the history of injury on which his opinion is based is not consistent with the applicant’s own statement in these proceedings and the history of injury recorded by Dr Hope as I cannot see the suggested inconsistency. Although in his report dated 22 October 2020 Dr Rizkallah reports the applicant as having given “a history of injuring both hips on multiple occasions during the course of his employment” in his more proximate report relevant to his review of the applicant on 10 June 2020, Dr Rizkallah merely makes reference to concern expressed by the applicant “in relation to both hips which he injured in the course of his employment” and this history of injury recorded is not inconsistent with the applicant’s statement or that recorded by Dr Hope.
I am of the view the applicant provided a credible history regarding the onset of his left hip symptoms as early as 2008 due to the repetitive nature of his work duties, which were clearly labouring in nature. The applicant has the support of Dr Hope, and I prefer his opinion over that of Dr Rimmer as Dr Rimmer made no mention of the work duties undertaken by the applicant during the course of his employment with the respondent and ultimately provided opinion without the opportunity to review the further investigations he had requested. Although the respondent submits that in his report Dr Hope failed to adequately address the issue of causation and should be rejected[47], for the reasons previously discussed I am of the view Dr Hope has adequately explained the cause of injury.
[47] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 339; Rolleston v Insurance Australia Ltd [2017] NSWCA 168 at 32.

The applicant also has the support of Dr Azar, Dr Soo and Dr Rizkallah, and I prefer their opinions over that of Dr Rimmer as they have been involved in the applicant’s medical care for many years, whereas Dr Rimmer assessed the applicant on one occasion only.

Although none of the doctors in this matter have used the terminology “main contributing factor” I do not consider this to be fatal to the applicant’s claim as consideration of the evidence overall demonstrates the applicant’s employment with the respondent was the main contributing factor to him contracting left hip osteoarthritis. In AV v AW[48] the Commission considered the meaning of ‘main contributing factor’ and following analysis of the authorities relevantly concluded the test of ‘main contributing factor’ is one of causation, which involves consideration of the evidence overall. As there is no evidence to suggest any other cause for the development of the applicant’s left hip symptoms and pathology, I am satisfied the applicant’s employment with the respondent was the main contributing factor to injury.
[48] [2020] NSWWCCPD 9.
I accept the applicant has discharged the onus of proof required of him and I am satisfied the applicant sustained injury to his left hip in the course of his employment with the respondent, with the applicant’s employment with the respondent being the main contributing factor to injury.

The applicant has pleaded a date of injury of 12 October 2000, being the date of the MVA. However, as I accept the applicant sustained injury in the nature of a disease contracted in the course of his employment with the respondent and that his employment was the main contributing factor to such injury, s 15 of the 1987 Act relevantly provides that if an injury is a disease which is such a nature as to be contracted by a gradual process, the injury shall for the purposes of the Act be deemed to have happened at the time of the applicant’s incapacity.

I am satisfied that the deemed date of injury in the circumstances of this particular matter is the date the applicant ceased working with the respondent. In his report dated 7 December 2016 Dr Stephen noted the applicant’s cessation of work with the respondent as occurring “three or four months ago” (August/September 2016) and I cannot find reference elsewhere in the documents before the Commission to the actual date the applicant ceased working with the respondent.

Treatment

As I accept the applicant suffered an injury to his left hip in the course of his employment with the respondent and I accept that his employment with the respondent was the main contributing factor to such injury, it follows he has an entitlement to compensation for the cost of medical or related treatment payable under ss 59 and 60 of the 1987 Act.

Is the proposed surgical treatment in the nature of left total hip arthroplasty proposed by Dr Rizkallah reasonably necessary as a result of injury sustained by the applicant during the course of his employment with the respondent?

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.

Section 60 of the 1987 Act provides:
“60 (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)”.
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[49]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[49] (1986) 2 NSWCCR 32 (Rose).

His Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Ltd[50], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[50] [2014] NSWWCCPD 72 (Diab).
“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.
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”.

Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined based on the facts in each case as discussed in Kooragang. In this matter the applicant must establish that the injury he sustained to his left hip while working with the respondent materially contributed to the need for the proposed surgical treatment. This requirement was confirmed by former Deputy Roche in Murphy v Allity Management Services Pty Ltd[51] 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 (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
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’ 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 surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[51] [2015] NSWWCCPD 49.

In his evidentiary statements the applicant says he wants to proceed with the surgical treatment and it is evident from the clinical records that his activities of daily living are in part limited by his chronic left hip pain. The surgical treatment is supported by Dr Rizkallah, who is the applicant’s long term treating orthopaedic surgeon. Dr Rizkallah provides opinion the surgical treatment is reasonably necessary treatment for the applicant’s left hip injury and cautions prognosis without the surgery is extremely guarded. Dr Hope also provides opinion the surgical treatment is required for the applicant’s left hip injury. While Dr Rimmer provides opinion the surgical treatment is not “reasonable or necessary treatment”, this is not the test prescribed in s 60 of the 1987 Act and in any event Dr Rimmer provides such opinion without opportunity to review the further investigations he requested.

Considering the support afforded by Dr Hope and Dr Rizkallah in particular, I am of the view the injury the applicant sustained to his left hip in the course of his employment with the respondent materially contributed to the need for the surgical treatment. I am satisfied the applicant has discharged the onus of proof required of him and I accept the surgical treatment is reasonably necessary treatment as a result of the injury the applicant sustained to his left hip in the course of his employment with the respondent.

SUMMARY

The applicant sustained injury to his left hip in the course of his employment with the respondent. The applicant’s employment with the respondent was the main contributing factor to injury. The deemed date of injury is in or about August 2016.

The applicant requires medical and related treatment as a consequence of the injury he has sustained to his left hip. The total left hip arthroplasty recommended by Dr Rizkallah is reasonably necessary treatment resulting from the injury the applicant sustained to his left hip with the deemed date of injury of in or about August 2016.