Bridgefoot v Sydney Catholic Schools Limited
[2021] NSWPIC 335
•7 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bridgefoot v Sydney Catholic Schools Limited [2021] NSWPIC 335 |
| APPLICANT: | Gelsomina Bridgefoot |
| RESPONDENT: | Sydney Catholic Schools Limited |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 7 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Section 60 of the Workers Compensation Act 1987 expenses for right total knee replacement; severe degenerative change in knee aggravated by an injury in 2019; medical evidence with respect to material contribution; Murphy v Allity Management Services Pty Ltd considered; requirements for expert evidence; South West Sydney Area Health Service v Edmonds considered; Held - award for the applicant pursuant to section 60. |
| DETERMINATIONS MADE: | 1. The applicant discontinues the claim for weekly compensation. 2. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent is to pay the applicant’s medical, hospital and related treatment expenses of, and incidental to, right total knee replacement surgery undertaken by Dr Broe on 1 June 2020. |
STATEMENT OF REASONS
BACKGROUND
Gelsomina Bridgefoot is employed by Sydney Catholic Schools Limited (Schools) as a primary school teacher. She suffered three injuries during the course of her employment but in these proceedings relied only on an injury on 6 December 2019 in a bus accident. The Application to Resolve a Dispute (ARD) pleaded that the injury aggravated a previous injury on 30 November 2018.
On 1 June 2020, Ms Bridgefoot underwent a right total knee replacement. Schools concedes that Ms Bridgefoot suffered an injury to her right knee on 6 December 2019 and that the right total knee replacement was reasonably necessary medical treatment for the condition in her knee.
The issue for determination is whether the injury on 6 December 2019 made a material contribution to the need for that surgery.
PROCEDURE BEFORE THE COMMISSION
The proceedings were heard and determined by an arbitrator of the former Workers Compensation Commission on 11 November 2020 who gave oral reasons for his decision on that day.
Schools appealed and in a decision dated 8 June 2021[1], the President of the Personal Injury Commission revoked the Certificate of Determination and remitted the matter for determination by another member.
[1] Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17.
The matter was listed for conciliation conference and arbitration hearing on 6 August 2021 when Ms Goodman of counsel appeared for Ms Bridgefoot and Mr Baker of counsel appeared for Schools.
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 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.
The ARD seeks weekly compensation as well as s 60 expenses. I was informed that Ms Bridgefoot intended to discontinue the claim for weekly compensation and the parties were uncertain if that had been done formally. For abundant caution, I have noted that discontinuance in this Certificate of Determination.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply;
(c) Ms Bridgefoot’s Applications to Admit Late Documents dated 30 October 2020 and 23 July 2021, and
(d) Schools’ Application to Admit Late Documents dated 30 July 2021.
There was no oral evidence.
Ms Bridgefoot’s injury is described in the ARD in the following way:
“The worker was injured on 6 December 2019 whilst travelling to Ryde Aquatic Centre with school students. After a steep turn and speed bump, her seat lifted up and she hit her knees on the seat in front and her lower body dropped into a void. She felt immediate pain in her right knee and lower back. This injury aggravated her previous work-related injury suffered on 30 November 2018.”
Ms Bridgefoot prepared a statement dated 22 August 2019, before the injury which is the subject of these proceedings. She said that she had been a teacher in the Catholic education system for 39 years. She said she suffered an injury on 30 November 2018 in a bus when the driver pulled out at high speed, striking a brick wall then reversing and jamming the bus door into a road sign. She was thrown forward then landed with her back in the aisle and her right shoulder partly under a seat. She said that her right shoulder was sore and that she suffered injuries to her neck and back. She continued to work. In that statement she did not say that she suffered an injury to her right knee on 30 November 2018.
Ms Bridgefoot prepared a further statement dated 31 July 2020. She said that she suffered an injury to her right knee in 2008 while bending down to the floor to teach Year 1 students. She underwent an arthroscopy because Dr P Walker told her she had a torn meniscus. She was paid compensation for 6% whole person impairment after that injury. She said that she suffered an injury to her right hand and knees in a fall in 2016. She recovered from both of those injuries and in 2018 had no pain in her knee so that she walked 300 km of the Camino walk in April 2018 and was doing yoga three times per week. She described the 2018 injury and said that she injured her back, neck, right shoulder, right knee and left foot. She said that she returned to work in late January 2019 and continued to suffer knee and lower back pain.
On 6 December 2019 Ms Bridgefoot was travelling by bus to Ryde Aquatic Centre with students. She was wearing a seatbelt but felt the seat lift and she hit her knees on the seat in front and her lower body dropped into a void. She felt immediate pain in her right knee and back. Ms Bridgefoot described her treatment. She saw Dr D Broe who recommended a total knee replacement. Schools’ insurer denied liability on 6 April 2020 and she funded the surgery herself.
General practitioners’ notes
Ms Bridgefoot suffered an injury to her back in the 2018 and 2019 bus accidents. In the summary which follows, I have omitted reference to any conditions other than her right knee.
Ms Bridgefoot’s general practitioners’ notes commence with what appears to be an entry for a long consultation with Dr M Ulrick on 3 December 2018. Dr Ulrick noted that Ms Bridgefoot had been seen in Emergency where staff assessed her sacrum, buttock bruising and low back. Her ribs and neck were painful but no imaging was undertaken. The notes suggest that Ms Bridgefoot and Dr Ulrick discussed a number of other conditions and the notes end with:
“Review knee - rest more this wk
Knee painful
Saw surgeon on 23rd June - recommended arthroscopy.
Need to rest more at present.
Only doing stretches, strengthening had to be reduced”
Ms Bridgefoot saw Dr Ulrick on a number of occasions in late 2018 and early 2019 with respect to the injuries from the 2018 bus accident and their impact on her employment, and other conditions.
On 10 July 2019, Dr R Mann noted that Ms Bridgefoot’s “R knee gets tender medial joint space.” She provided Ms Bridgefoot with a referral for an x-ray of both knees. She also provided a referral to Dr Simon Benstock. Though Mr Baker submitted that the notes suggested that Ms Bridgefoot was to be referred to Dr Benstock in respect of her knees, it was agreed after discussion during the arbitration hearing, that Ms Bridgefoot was referred to Dr Benstock for a colonoscopy.
On 17 July 2019 Dr Mann recorded:
“O/A both knees R>L (femoropatellar as well as medial jt space) on xray
If not settling can have steroid injection.
Referral: Steroid injection under ultrasound R knee - Alfred Imaging Five Dock.”Ms Bridgefoot began to see Dr E Blazek at the same surgery on 1 August 2019 who noted that she had a number of ongoing problems resulting from the 2018 accident and that she had sought legal advice. On 8 August 2019 Dr Blazek noted that her solicitors had suggested a referral to Dr McGee-Collett.
On 14 September 2019 Dr Blazek noted that Ms Bridgefoot had walked for an hour and half an hour on consecutive days which caused her right sided pain – including knee pain - to increase. Her long hours of work prevented her attending fitness sessions and Dr Blazek considered she required treatment for her knee pain. Dr Blazek documented Ms Bridgefoot’s intercurrent medical conditions and treatment of other injuries.
On 4 October 2019, Dr Blazek recorded that Ms Bridgefoot was attending one on one yoga sessions, walking 20 minutes a day regularly and attending physio once a fortnight and more frequently during the school holidays. Dr Blazek noted ongoing pain in Ms Bridgefoot’s back and occasionally her neck.
On 21 October 2019 Dr Dorrigan recorded that Ms Bridgefoot had exacerbation of back and right leg pain after standing at a wedding.
Ms Bridgefoot saw Dr Dorrigan on 6 December 2019, providing a history of the injury that afternoon. Dr Dorrigan recorded:
“Was on bus to swim school 06/12/19 around 2pm
Wearing seatbelt and sitting towards back of bus
Seat slid forward (not fixed in place) while bus was turning left off Victoria Rd and then left again pulling into carpark, both of these turns Mina reports a steep descent with both turns causing the seat slide forwards. Mina's knees came in contact with seats in front of her with direct impact to her knees and causing her hip and knees to flex causing instantaneous pain to lower back, radiating down the right leg alongside R knee pain.”Dr Dorrigan noted that Ms Bridgefoot’s right knee was tender along the patella tendon and that the range of motion was restricted due to pain. She referred Ms Bridgefoot for an x-ray and prescribed Targin.
On 9 December 2019 Dr Blazek noted that the injury had exacerbated the injury sustained in November 2018. On 12 December, Dr Blazek noted, as well as commenting on other conditions, that Ms Bridgefoot’s knee pain had reduced a little and that the x-ray showed an effusion and mild degenerative changes.
On 18 December 2019 Dr Ulrick recorded:
“(not seen) received request from carroll and oDea lawyers for file from 30/11/18 to 12/12/19
Called Mina to confirm this ok - her lawyers. Requests I separate out unrelated conditions from the workcover ones.
Same done(although there is some overlap eg of Mother's illness and death - Mina aware) and printed off.” [sic]On 10 January 2020 Dr Blazek noted that Ms Bridgefoot’s knee pain was waking her at night and distressing during the day. Dr Blazek recorded that the knee pain was exacerbated by both accidents and that Ms Bridgefoot had an arthroscopy with Dr Walker in 2009 following a work injury. On 20 January, Ms Bridgefoot told Dr Blazek that her knee pain was worsening and that her knee had given way while walking. Dr Blazek prescribed Mobic.
On 3 February, Ms Bridgefoot told Dr Blazek that she had been stuck in the lift at school for 25 minutes and that she refused to use the lift until it had been serviced. On 10 February 2020, Dr Blazek noted that Ms Bridgefoot’s right knee was inflamed and aggravated as a result of using the stairs. On 14 February, Dr Blazek noted that Ms Bridgefoot’s target was to return to her pre-injury capability of “walking 30 kms in one day ie 4 hours of steady walking”. At that time she was walking 20 minutes a day when not having physiotherapy or swimming. On 17 February Ms Bridgefoot told Dr Blazek that she had walked for 30 minutes at a slow pace twice in the last week. Dr Blazek noted that an MRI scan had been booked and prescribed Targin again.
On 24 February 2020 Ms Bridgefoot underwent an MRI scan which was reported by Dr L Deady as showing:
“Extensive macerated medial meniscal tear with extensive full-thickness chondral loss in all 3 compartments. There is a joint effusion. No fracture identified. Bipartite patella with bone marrow oedema at the margins of the synchondrosis.”
On 9 March 2020, Dr Blazek noted that Ms Bridgefoot was to see Dr I Smith as an injury management consultant at the request of Schools’ insurer.
Specialists’ reports
Ms Bridgefoot saw Dr McGee-Collett, neurosurgeon, on 29 August 2019 at the request of Dr Blazek. Dr McGee-Collett obtained the history that Ms Bridgefoot had lived an active life until the bus crash in November 2018, after which she has upper back and neck pain as well as headaches, lower back pain, some right buttock pain, right knee pain and left mid-foot pain. He considered that her spinal symptoms were a result of the bus crash aggravating previously quiescent degenerative changes and that she had right knee arthropathy for which she should see an orthopaedic surgeon.
Dr Broe prepared a medico-legal report dated 30 October 2020. He first saw Ms Bridgefoot on 18 March 2020 and he said that she had three workplace injuries to the right knee. In 2008 she had a twisting injury which caused a meniscal tear. She returned to full function after surgery. He said that on 30 November 2018 Ms Bridgefoot was involved in a significant traumatic bus injury in which she suffered a crush injury to her right knee. After a lengthy recovery she returned to work.
Dr Broe said that Ms Bridgefoot had a third injury in December 2019 when her right knee joint crushed into the seat in front and she had a twisting injury. Her knee “really deteriorated” in the following months during which she underwent twice-weekly physiotherapy and she required increasing opioid medication. She had episodic instability and the pain was primarily on weight bearing. He said:
“I evaluated her MRI scan. She was also sent for a functional weight bearing x-rays on the day of the visitation. They demonstrated advanced osteoarthritic change throughout her knee joint. It was primarily in the medial compartment however she also had significant patellofemoral disease. She had a previous bipartite patella however that appeared to have loosened and fractured following her most likely recent direct anterior collision.”
The x-ray to which Dr Broe referred was reported on by Dr G O’Connell on 17 March 2020 showed:
“There is moderately severe tricompartment osteoarthritis involving the right knee including near complete collapse of the medial compartment. There is a tripartite patella. There may be a couple of tiny calcific loose bodies within the lateral aspect of the right knee.
No acute facture, erosive arthropathy, destructive bone lesion or significant joint effusion.”
Dr Broe undertook a right total knee replacement on 1 June 2020 from which Ms Bridgefoot had a good recovery. Dr Broe said:
“There is no doubt that there was a progression in her injury. Her severe osteoarthritis particularly on the medial compartment most likely stemmed from her original workplace injury with a near complete medial meniscectomy. With a loss of her medial meniscus this would have led to an accelerated degeneration of the medial compartment. The 2 bus accidents would have accelerated and deteriorated her underlying condition. They would have advanced her patellofemoral osteoarthritis and as stated I think she caused a fracture of her bipartite patella resulting in some associated significant anterior knee pain.”
Dr Broe prepared a further report addressed to Dr Watson and to Ms Bridgefoot’s solicitors on 6 July 2021. He said that the right total knee replacement had been undertaken when “she could no longer put up with her knee joint due to post-traumatic osteoarthritic change.” He said:
“Injury is definitely work-related. She had an initial work-related injury in 2008 and underwent arthroscopic surgery with a near complete medial meniscectomy. As a result of losing her medial shock absorber, she developed progressive severe osteoarthritis on the medial compartment of her knee joint.
She then had a further work-related accident on a school bus in 2018 and again in 2019.
These work-related injuries markedly exacerbated and accelerated her underlying disease. Following the final injury in 2019, her right knee joint never fully recovered and just clinically worsened. We tried to manage this nonoperatively however she continued to clinically deteriorate to the level where surgery was indicated.
It is definitely my opinion that the right total knee replacement surgery was as a result of all 3 work-related accidents. There is no doubt that her most recent injury in December 2019 markedly exacerbated and accelerated her underlying problem resulting eventually in advanced osteoarthritis requiring knee replacement surgery.”
Schools’ reports
Dr K Edwards, general surgeon, saw Ms Bridgefoot at the request of Schools on 29 May 2019. He said he saw Ms Bridgefoot in respect of her right knee injury in 2008 and that she had not undergone surgery. He did not obtain a history of an injury to her knees, nor did he examine them. He was asked to review reports and prepared a further report dated 16 October 2019. He again did not mention Ms Bridgefoot’s knees.
Schools relied on a series of reports by Dr R Wallace. In his first report dated 20 December 2019, Dr Wallace recorded that he had seen Ms Bridgefoot on 17 December 2018 and took a history of the injury on 6 December 2019. He noted that Ms Bridgefoot was about to commence physiotherapy. He said that she had a previous injury in 2008 and that her symptoms resolved after an arthroscopy. He recorded that Ms Bridgefoot declined to discuss the 2018 injury on the advice of her lawyer and because it was “too traumatic.” At the end of his report, Dr Wallace said that the 2018 injury was an injury to Ms Bridgefoot’s lumbar spine.
After conducting an examination, Dr Wallace considered that Ms Bridgefoot had suffered a soft tissue injury to her right knee and an aggravation of pre-existing tri-compartmental osteoarthritis on 6 December 2019. He considered that she would benefit from physiotherapy and analgesia and that she did not require surgery. He said that she would be fit for work in a month.
Dr Wallace prepared a report dated 13 February 2020, responding to a question from Schools’ insurer about whether domestic assistance was required as a result of the 2019 injury. He said that it was.
Schools’ insurer asked Dr Wallace some further questions on 18 February 2020. It asked if degenerative conditions noted by Dr Edwards in Ms Bridgefoot’s cervical spine and left foot were related to the injury. Dr Wallace said they were not. He considered that Ms Bridgefoot would have been fit for a trial of pre-injury duties one month after his consultation in December 2019.
Dr Wallace prepared a further report dated 21 May 2020 as a result of a telehealth consultation. On this occasion, he recorded a history of the 2018 accident, including that she suffered an injury to her right knee for which she was still undergoing physiotherapy at the time of the 2019 injury. He noted that Dr Broe had recommended right total knee replacement and said:
“At the right knee, she notes a constant aching pain at the medial aspect of the joint radiating to the anterior aspects of the joint.
The pain is worse at night, on cleaning, walking, doing a home exercise program or getting up from sitting and is relieved by hot or cold packs.
She notes intermittent swelling at the right knee but no locking. She complains of intermittent giving way at the right knee which occurs twice a week. She complains of ongoing stiffness at the right knee which is worse early in the morning.”
Dr Wallace noted the x-ray report dated 17 March 2020. He diagnosed aggravation of
pre-existing tricompartmental osteoarthritis of the right knee as a result of the 2018 and 2019 injuries and a soft tissue injury of the right knee in 2019. He said that it was highly likely that Ms Bridgefoot suffered osteoarthritis before the 2018 injury, given the severity of the degenerative change. He considered that the condition was caused by the two injuries, with a proportion being due to pre-existing osteoarthritis, particularly in the medial compartment. He said that the knee replacement surgery was reasonably necessary as a result of the 2018 and 2019 injuries.
Dr Wallace prepared a further report at the request of Schools’ insurer dated 17 June 2020, setting out the long question that he was asked, which was essentially whether Ms Bridgefoot had suffered a right knee injury in 2018. Referring to the notice of injury and Dr Edwards’ report, Schools’ insurer asked:
“The report of Dr Broe that was provided to you did record details of a right knee injury occurring in the incident on 30 November 2018 and this is similar to what the worker reported to you, however this is not consistent with the contemporaneous evidence discussed above.
Please therefore confirm whether in your opinion the worker did sustain any injury to her right knee in the incident occurring on 30 November 2018 in light of that contemporaneous documentation?”
The report does not disclose precisely what reports or notes Dr Wallace was asked to review but he said:
“There is in fact no objective medical evidence that Ms Bridgefoot suffered any injury to her right knee as a result of a work incident on 30 November 2018.
In particular I note that she was reviewed by her local medical officer, Dr Ulrick at Five Dock on 3 December 2018 some three days after her work incident but did not complain of any injury nor symptoms at her right knee.
She was subsequently reviewed by Dr Ulrick on 19 occasions in the period December 2018 to June 2019 and during these consultations made no mention of any injury at her right knee as a result of a work incident on 30 November 2018 or any symptoms at her right knee.
I note the Incident Report in regard to her work injury of 30 November 2018 notes injuries involving her neck, back and ribs but there is no mention of any right knee injury.”
Dr Wallace said that the nature of the injury suffered in 2019 did not change but said:
“In view of the fact that Ms Bridgefoot suffered no work-related injury at her right knee prior to her work incident on 6 December 2019 I am now of the opinion that the post-operative intervention of right total knee replacement is not reasonably necessary as a result of work injury of 6 December 2019 alone.”
And:
“The review with Ms Bridgefoot on 19 May 2020 was carried out via Telehealth consultation therefore no physical examination of the right knee was performed at that time. The evidence available at the time of review on 19 May 2020 and the subsequent lack of evidence of a previous injury at her right knee on 30 November 2018 would lead me to conclude that Ms Bridgefoot suffered a work-related aggravation of pre-existing degenerative osteoarthritis at the right knee as a result of a work incident on 6 December 2019 which would have resolved within six months of this incident, i.e. by early June 2020.
Therefore Ms Bridgefoot suffered a temporary aggravation of pre-existing degenerative osteoarthritis of the right knee as a result of a work incident on 6 December 2019 which has now resolved.”
Dr Wallace was asked the following question and provided the answer which follows:
“Can you please provide your opinion as to on what basis the right knee replacement is reasonably necessary as a result of injury on 6 December 2019 having regard to the evidence noted above? Would the worker have proceeded to a right knee replacement at this time irrespective of any injury on 6 December 2019?
The indication for Ms Bridgefoot to undergo operative intervention in the form of a right total knee replacement at this time is due to her pre-existing condition of degenerative osteoarthritis at the right knee which is severe in nature, constitutional in origin and was present for some years prior to the indexed work incident of December 2019.
Ms Bridgefoot would have required right total knee replacement at this time irrespective of any injury on 6 December 2019.”
Dispute notices
Schools’ insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 6 April 2020 in which it disputed liability for the right total knee replacement on the basis of Dr Wallace’s report dated 20 December 2019. The insurer also said that Dr Edwards did not diagnose a right knee injury and that it had sought a report from Dr Broe.
The insurer issued a further s 78 notice on 27 July 2020, disputing ongoing liability for the 2018 injury and weekly compensation and the cost of the knee replacement surgery as a result of the 2019 injury. The insurer denied that Ms Bridgefoot suffered a right knee injury in 2018 and relied on Dr Wallace’s opinion that her work-related right knee condition had resolved.
SUBMISSIONS
Mr Baker offered to address first and summarised Ms Bridgefoot’s statements, noting that she said that she had injured her right knee in 2018. He referred to the dispute notices and said that Schools’ case was that the contemporaneous evidence showed that Ms Bridgefoot did not suffer an injury to her right knee in 2018 and that she suffered an aggravation of degenerative changes in December 2019, which had not ceased.
Mr Baker said that the need for the surgery was a result of significant degenerative change, shown on the MRI scan dated 24 February 2020 and on an x-ray undertaken at the request of Dr Broe.
Mr Baker took me to the notes of Ms Bridgefoot’s general practitioners and said that there was a full description of the 2018 injury in a detailed note which included a reference to a recommendation by a surgeon in June for an arthroscopy. The notes for visits which follow did not record complaints in relation to her knees until 17 July 2019 when there is a reference to osteoarthritis in both knees with the right being worse than the left. A referral was provided for a steroid injection. Mr Baker said these notes indicated that, regardless of the episode in November 2018, Ms Bridgefoot had an ongoing grumbling problem with her knees.
Following the December 2019 injury, Mr Baker said that the pain in Ms Bridgefoot’s knee reduced then worsened again when Ms Bridgefoot tried to get back to walking. On 21 February 2020, Ms Bridgefoot reported walking 30 minutes a day.
Mr Baker noted the report of Dr McGee-Collett who recommended Ms Bridgefoot see an orthopaedic surgeon for her right knee. This was consistent, he said, with the general practitioners’ notes which showed an ongoing knee problem which was not related to the 2018 injury. Mr Baker said that the report dovetails neatly with Dr Wallace’s opinion and that Dr Broe did not have the history that Ms Bridgefoot’s right knee improved before deteriorating.
Mr Baker summarised Dr Wallace’s reports. He noted that Dr Wallace recorded a history that Ms Bridgefoot was undergoing physiotherapy at the time of the 2019 injury, which is not consistent with the notes of the general practitioner. Dr Wallace originally considered that the surgery was reasonably necessary as a result of the 2019 injury until provided with the history that Ms Bridgefoot had not suffered an injury to her right knee in 2018. Mr Baker submitted that Dr Broe was unlikely to have had the correct history. He said that I would find that the 2019 injury caused a short term aggravation of an underlying condition. The fact that it has not resolved as Dr Wallace anticipated was a result of the natural progression of that condition.
Ms Goodman said that there was no doubt that Ms Bridgefoot suffered two if not three injuries to her right knee. There was no doubt that she suffered an injury to her right knee in 2008 from which she recovered well. She suffered an injury to her knee in 2019 and Dr Broe said that she had “really deteriorated” after that injury. She remained off work as at March 2020, having been unable to return.
Ms Goodman said that the first complaint recorded in the General practitioners’ notes in respect of Ms Bridgefoot’s right knee after the 2018 was in July 2019 when an x-ray was undertaken. In August 2019, Dr McGee-Collett noted that Ms Bridgefoot had pain in her right knee and by September Dr Blazek queried whether she might need treatment. By October 2019, Ms Bridgefoot was walking for 20 minutes a day regularly. In the period leading up to the 2019 injury, Ms Bridgefoot made minimal complaints in respect of her right knee and treatment was recommended only if the pain she had did not settle.
Rather than showing an improvement, Ms Goodman said that the general practitioners’ notes showed that Ms Bridgefoot’s right knee did not settle. At the conclusion of the notes in March 2020, Ms Bridgefoot was taking Targin and Panadol, which was consistent with Dr Broe’s comment about deterioration and with his report dated 6 July 2021.
Ms Goodman noted that Dr Wallace originally accepted the causal relationship between the 2019 injury and the need for a total knee replacement. Referring to the decision of Roche DP in Murphy v Allity Management Services Pty Ltd[2] (Murphy) Ms Goodman said that there can be multiple causes for treatment and compensation will be payable so long as the injury made a material contribution to the need for treatment. Dr Broe’s opinion that the 2019 injury markedly exacerbated Ms Bridgefoot’s underlying condition was evidence of a material contribution.
[2] [2015] NSWWCCPD 49.
Ms Goodman said that I would not be assisted by Dr Wallace’s opinion. Dr Wallace was told that the evidence was not consistent with a knee injury in 2018 and agreed. He said that history did not change his view about the nature of the injury in 2019 but in answer to the next question said that the total knee replacement was not reasonably necessary as a result of the 2019 injury alone. Ms Goodman said that position was inconsistent with authority. She said that Dr Wallace offered no reasons whatsoever for his statement that the injury in 2019 was a temporary aggravation and that I would not accept his opinion. She said that Dr Edwards did not deal with Ms Bridgefoot’s right knee and that his opinion was irrelevant.
FINDINGS AND REASONS
Section 60 of the Workers Compensation Act 1987 (the 1987 Act) requires employers to pay the cost of reasonably necessary medical treatment required as a result of an injury.
Roche DP considered the meaning of reasonably necessary in Diab v NRMA Ltd[3]:
[3] [2014] NSWWCCPD 72.
“… ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea[2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd[2012] NSWCA 445 at [113] (Moorebank).
Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. ...
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[4] (see [76] above), 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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
[4] Referring to Rose v Health Commission NSW [1986] NSWCC 2; (1986) NSWCCR 32.
There is no dispute that Ms Bridgefoot suffered an injury to her right knee on 6 December 2019. No dispute has been raised as to the nature of the injury – that she struck the front of her knee on the back of a seat.
The evidence shows that Ms Bridgefoot had significant pre-existing osteoarthritis. Dr Broe said in his report dated 6 July 2021 that the osteoarthritis in the medial compartment of her right knee was contributed to by the removal of her medial meniscus in 2008. Dr Broe said in his report dated 6 July 2021 that the 2019 injury markedly exacerbated and accelerated the underlying problem leading to the need for total knee replacement. His 2021 report had not been prepared at the time of the previous proceedings.
Schools does not dispute that the knee replacement surgery was reasonably necessary to treat the condition in Ms Bridgefoot’s knee at the time the surgery was undertaken but it disputes that it was reasonably necessary as a result of the 2019 injury.
It is not necessary that a work injury be the only cause of a need for treatment for that treatment to be reasonably necessary as a result of the work injury.
In Murphy v Allity Management Services Pty Ltd[5], Roche DP said:
“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 28 at [25] and [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 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).”
[5] [2015] NSWWCCPD 49.
If the work injury in 2019 materially contributed to the need for the knee replacement surgery, then the surgery was reasonably necessary medical treatment as a result of the injury.
I am not persuaded that Ms Bridgefoot did suffer an injury to her right knee in the bus accident in 2018. The statement she made in mid 2019 did not mention an injury to her right knee. The complaints to her general practitioners in respect of her right knee in 2019 are, as Ms Goodman submitted, minimal. They are interspersed with references to the injury to her back and to intercurrent medical conditions. The complaint to Dr McGee-Collett is isolated. It is probably consistent with the previous surgery and underlying degenerative change that she would have suffered knee pain from time to time.
Dr Broe obtained the history that Ms Bridgefoot’s knee deteriorated after the 2019 injury. In his report dated 18 March 2020 he described the injury and her symptoms, noting that she required significant pain relief. That is consistent with the reports to her general practitioners and the fact that there were no references to significant medication in their notes in 2019 before the injury. Following the 2019 injury, Ms Bridgefoot was prescribed Targin and Mobic.
Dr Broe had a history that Ms Bridgefoot did injure her knee in 2018. While he attributed the need to all three injuries, including that in 2008, he said that the 2019 injury markedly exacerbated and accelerated her underlying problem. Dr Broe has turned his mind to the question of material contribution and his opinion provides the basis for me to find that the knee replacement surgery was reasonably necessary as a result of the 2019 injury.
Mr Baker submitted that I should find that the condition of Ms Bridgefoot’s knee improved after the injury, based on the note by Dr Blazek dated 12 December 2009 and the fact that she was walking 30 minutes a day by February 2020. I am not persuaded that a reduction in pain indicates an improvement, merely that the pain was somewhat reduced from what it had been at the time of the previous consultation. It is not surprising when Ms Bridgefoot was taking Targin and Panadol.
On 20 January 2020, Dr Dorrigan noted that Ms Bridgefoot’s knee pain was worsening. The general practitioners’ notes indicate that Ms Bridgefoot has resumed walking but was walking for short periods and slowly. At the same time, she was waiting to undergo an MRI scan which was undertaken in late February and led to the referral to Dr Broe. The notes of the general practitioners do not support the contention that the condition of Ms Bridgefoot’s knee improved. At most, they show that Ms Bridgefoot’s pain waxed and waned.
Dr Wallace considered that the 2019 injury was a temporary aggravation of the underlying condition. He examined Ms Bridgefoot once, 10 days after the 2019 injury. At that time he accepted that she suffered a soft tissue injury and an aggravation of degenerative changes. He suggested that she would be fit for a trial of work in a month. He described the 2018 injury as an injury to her lumbar spine. In his report dated 13 February 2020 he considered that the soft tissue injury warranted domestic cleaning assistance.
Dr Wallace’s subsequent reports are prepared in response to requests from Schools’ insurer that he review reports and answer questions and on the basis of a telehealth consultation on 19 May 2020. He agreed that Ms Bridgefoot needed knee replacement surgery as a result of the injuries in 2018 and 2019.
Dr Wallace changed his opinion in his report dated 17 June 2020, having been told that Ms Bridgefoot did not suffer an injury to her knee in November 2018. He reviewed some reports and agreed that was not the case. His answers to the two questions which follow are inconsistent. He said that the nature of the injury as a result of the work incident did not change. Logically, that suggests that he still considered that she suffered a soft tissue injury and the aggravation of degenerative changes.
He was then asked if the incident was a temporary aggravation from which Ms Bridgefoot had recovered and said that the work-related aggravation would have resolved by mid-June 2020. He said that “therefore” it had now resolved. He was not given the opportunity to examine her again to express a view as to whether that had in fact happened. The selection of the date is arbitrary. It is not consistent with the history that Ms Bridgefoot gave him in May 2020 that she continued to take Mobic and Panadol and attend physiotherapy.
Dr Wallace was then asked the question and provided the answer set out at [48] above. The question does not accurately state the test to be applied. Dr Wallace did not provide any reasoning for his opinion that Ms Bridgefoot would have required a knee replacement at the same time irrespective of the injury, other than to say that the osteoarthritis was pre-existing and severe.
In South Western Sydney Area Health Service v Edmonds[6] McColl JA described the requirements for expert evidence in the Workers Compensation Commission:
[6] [2007] NSWCA 16 at [130]-[132].
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
The requirements that evidence be logical and probative and that unqualified opinions are unacceptable have been carried forward to the Personal Injury Commission in rule 73 Personal Injury Commission Rules 2021.
Dr Wallace did not provide reasons for his opinion. He was asked a series of questions to which he provided short answers, which are essentially repetitive. The explanation for his opinion that the condition had resolved was important because he had only seen Ms Bridgefoot once 10 days after the 2019 injury. It is not clear if he was aware the surgery had been undertaken. There is no explanation for his opinion that Ms Bridgefoot would have required a knee replacement at the same time irrespective of the injury. That explanation was also important because he had previously accepted that Ms Bridgefoot had suffered a soft tissue injury and an aggravation of degenerative changes.
None of Dr Wallace’s reports engaged with the radiological finding that Ms Bridgefoot had a bipartite patella which Dr Broe said was fractured in the 2019 injury.
Dr Broe said that Ms Bridgefoot’s right knee never recovered from the 2019 injury and that the injury exacerbated and accelerated her underlying condition. That statement is consistent with her own evidence and the notes of her general practitioners. I am satisfied that the 2019 injury materially contributed to the need for surgery so that the right total knee replacement was reasonably necessary medical treatment as a result of the injury on 6 December 2019.
I therefore order that pursuant to s 60 of the 1987 Act, the respondent is to pay the applicant’s medical, hospital and related treatment expenses of, and incidental to, right total knee replacement surgery undertaken by Dr Broe on 1 June 2020.
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