Broadbent v Superior Food Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Broadbent v Superior Food Group Pty Ltd [2022] NSWPIC 571
APPLICANT:	Guy Winston Broadbent
RESPONDENT:	Superior Food Group Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	14 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 compensation for the costs of and incidental to L54/S1 discectomy and neurolysis; accepted left knee injury following fall from a truck; whether injury to lower back in the injurious event or consequential lower back condition resulting from injury; pre-existing conditions in the knees, hip and back; Held – applicant failed to discharge onus of establishing injury to the lower back; evidence of altered gait following surgeries to left knee as a result of injury; applicant’s treating and medicolegal evidence accepted; left knee injury materially contributed to the back condition and need for surgery; proposed surgery reasonably necessary as a result of the injury; award in favour of the applicant.
DETERMINATIONS MADE:	1. The L5/S1 discectomy and neurolysis recommended by Dr Andrew Cree in his reports dated 20 May 2022 is reasonably necessary as a result of the injury on 21 May 2021.
ORDERS made:	2. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent to pay the costs of and incidental to the L5/S1 discectomy and neurolysis recommended by Dr Cree.

STATEMENT OF REASONS

BACKGROUND

Mr Guy Winston Broadbent (the applicant) was employed by Superior Food Group Pty Ltd (the respondent) as a truck driver. On 21 May 2021, the applicant sustained an injury when he slipped and fell off the back of his truck.
Liability for an injury to the applicant’s left knee in that event was accepted on 29 July 2021.
On 20 May 2022, orthopaedic spinal surgeon, Dr Andrew Cree, recommended that the applicant undergo a L5/S1 discectomy and neurolysis and sought approval for the procedure from the respondent’s insurer.
Liability for the surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 June 2022.
That decision was maintained following internal review in a notice issued on 12 July 2022.
A further notice, disputing liability for the proposed surgery and any consequential lower back condition was issued on 13 July 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 15 July 2022. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and ancillary to the procedure recommended by Dr Cree.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 20 September 2022 via Microsoft Teams. The applicant was represented by Mr Stuart Moffett of counsel, instructed by Mr Steve Walker and Mr Ivica Covic. The respondent was represented by Mr Stephen Hickey of counsel, instructed by Ms Joanna Turnbull. A representative from the insurer 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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the L5/S1 discectomy and neurolysis, recommended by Dr Cree in his reports dated 20 May 2022, is reasonably necessary as a result of the injury on 21 May 2021.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 2 August 2022, and
(d)    documents attached to an Application to Admit Late Documents lodged by the applicant on 14 September 2022
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 22 June 2022 and 14 September 2022.
In his first statement, the applicant disclosed his prior medical history.
In December 2019, the applicant underwent a right total knee replacement performed by Dr Christine Castle. On 23 July 2020, the applicant underwent a left total knee replacement. That surgery was followed by a revision left total knee replacement and patellar tendon reposition on 1 April 2021. The applicant said he had a very good recovery and was able to return to work after his operation.
Prior to the work injury on 21 May 2021, the applicant experienced occasional pain in his lower back. The applicant was occasionally treated by chiropractors at Prestidge Chiropractic, although treatment was mainly in relation to his neck and right hip. The applicant had never previously seen a spinal surgeon.
The applicant disclosed his prior claim history including an injury to the right knee on 9 July 2012, for which he received treatment including right knee arthroscopies performed by Dr Castle.
On 21 May 2021, the applicant was loading a truck. The applicant was standing on the tabletop securing the load. It was lightly raining at the time and, as the applicant went to get off on the security steps, his foot slipped and he fell off the truck. The applicant fell backwards landing heavily on the concrete gutter below. CCTV footage of the incident was provided to the Commission.
The applicant said he recalled feeling pain in his right shoulder, left hip and lower back. The applicant’s left knee was sticking out and in excruciating pain. The applicant popped the knee back in and continued working. The applicant was new to the company and needed the money. The applicant had recently had time off for the revision left knee replacement and did not want to annoy the business anymore.
The applicant was reviewed by Dr Castle on 31 May 2021. Dr Castle recommended an urgent operation in the form of stabilisation of the patellofemoral joint with a lateral release and medial plication at the left knee.
On 7 June 2021, the applicant saw his general practitioner, Dr Hasan Hyasat, and told him about the work injury.
Liability for the surgery proposed by Dr Castle was declined by the insurer and the applicant had to stop work. The emergency surgery was performed on 1 July 2021 and the applicant remained in hospital until 5 July 2021.
Following the procedure, the applicant experienced complications due to infection with significant swelling and bleeding. A further surgery to debride the wound was performed on 14 July 2021 and the applicant remained in hospital until 18 July 2021.
Following this operation, the applicant sought legal assistance and liability for the injury was accepted on 29 July 2021. On the same date, the applicant returned to hospital due to increasing pain in the left knee and was told that the knee had become infected. The applicant remained in hospital for a period of around 19 days.
A further surgery to the left knee was performed on 12 August 2021 to wash out and debride the wound.
The applicant stated:
“Following my operation and discharge from hospital, I was walking with a very heavy limp and had significantly altered gait. My lower back pain and left hip pain was increasing as a result of the way I was walking and the limping.”
On 20 August 2021, the applicant was referred to see a chiropractor Mr Bradley Prestidge, whom he had seen previously.
In October 2021, the applicant complained of increasing left hip pain and underwent an ultrasound of the left hip on 27 October 2021.
The applicant subsequently reported increasing pain in the left hip and lower back and was referred by Dr Castle for PRP injections in the left gluteal region. These injections did not provide the applicant with any significant benefit.
On 8 April 2022, the applicant underwent an MRI of the lumbar spine.
In May 2022, the applicant reported increasing lower back pain to his general practitioner. The applicant was referred to sports physician, Dr Luke Inman. The applicant stated:
“I feel like I have injured my lower back in the actual injury at work, but that my lower back condition has become significantly worse due to the way in which I have been walking and limping since my most recent left knee operations.”
The applicant saw Dr Inman on 10 May 2022 and was referred to spinal surgeon, Dr Andrew Cree.
On 20 May 2022, Dr Cree recommended surgery in the form of a left sided L5-S1 discectomy and neurolysis.
The applicant said he had constant pain in his left knee, was unable to kneel and had difficulty squatting. The applicant walked with a limp on the left leg and had weakness and instability in the left knee. The applicant’s left hip was painful and felt tight.
The applicant said his lower back was really painful. Chiropractic treatment had not helped much and the symptoms had gotten worse since the work injury because of the limping. The applicant experienced pain going down the left leg towards the fort and burning sensation in the leg. The applicant experienced numbness and pins and needles in the left foot.
In his supplementary statement, the applicant said he remained with significant back pain and restrictions in movement. In August 2022, the applicant trialled a steroid injection at
L5-S1. The injection provided no relief. The applicant said he wished to undergo the surgery recommended by Dr Cree, having trialled other forms of treatment.

Treating evidence

In a report dated 5 September 2012, orthopaedic surgeon, Dr Christine Castle described an injury to the applicant’s right knee when it was hit by a trolley on 9 July 2012. The applicant was referred for an MRI, which in a subsequent report, dated 18 September 2012 was said to show advanced changes including complete loss of chondral lining, loose bodies within the joint and arthritic changes. An intra-articular steroid injection and medial heel wedge were recommended.
On 22 October 2012, Dr Castle noted that the applicant had undergone a knee arthroscopy 20 years earlier and then had recreational activities, including extensive running. Approval for an arthroscopy was sought on 30 October 2012 when symptoms failed to settle with non-operative management.
Dr Castle’s reports indicate that approval for the knee arthroscopy was received and the surgery was performed on 18 December 2012. On 7 January 2013, it was noted that the applicant was unhappy with the results of the surgery and had persistent significant pain and swelling. In October 2013, approval was sought for repeat operative intervention.
In March 2019, Dr Castle reported that over the previous six years, the applicant had experienced increasing pain and stiffness in his right knee. The applicant was placed on a public waiting list for a joint replacement, which was performed in December 2019.
On 21 May 2020, Dr Castle reported that the applicant had experienced increasing problems going up and down stairs at his left knee. The applicant also experienced discomfort in his left hip. The applicant’s right knee replacement was noted to be loose. The applicant was placed on waiting list for a left knee replacement.
On 27 August 2020, Dr Castle recorded that the applicant had undergone left total knee replacement and was experiencing quite significant medial sided knee pain and swelling and discomfort from the anterior superior iliac spine.
On 28 September 2020, Dr Castle reported that the applicant had a failure of his medial repair. Revision surgery was recommended.
Clinical notes recorded by chiropractor, Dr Bradley Prestidge on 15 and 26 October 2020 referred to “head and neck stiffness, lower back”.
On 1 March 2021, chiropractor, Dr Ben Humphries noted:
“HURT R LO WBACK AND HIP - SOME DISCOMFORT IN THE RANT HIP ALSO Dr Ben Humphries HAD A CRATE OF FOOD AND DRINKS FALL OFF TRUCK ON HIGHWAY. HAD TO USE A LOT OF FORCE AND POWER TO TRY TO REPACK IT”
Reference to right lower back pain and right hip pain was recorded by chiropractor, Dr McKenzie Gray on 15 March 2021.
On 8 April 2021, Dr Castle recorded that the applicant had undergone revision knee replacement – patellofemoral joint realignment and replacement of patella button surgery.
On 17 May 2021, Dr Castle reported:
“He now has a subluxing patella. States that in the hospital the physiotherapist instructed him on knee flexion exercises. He got to a certain point when he felt a tearing sensation in his knee and the knee is subsequently bullied considerably resulting in him staying in the hospital an extra day. It appears that the medial repair has been ripped apart. I would like him to have a CT scan to assess the correct rotation of the knee replacement.”
Dr Castle saw the applicant on 31 May 2021 and reported:
“CT scan/perth protocol demonstrates his components to be in satisfactory alignment. His knee is unstable and he has fallen at work. As such I believe he requires stabilisation of his patellofemoral joint with a lateral release and medial plication.”
On 7 June 2021, Dr Hyasat recorded:
“injury on 21/5/21 at work
fell off heavy vehicle at work
landed on concret left knee
Right knee and shoulders and hips
continue working
felt pain in knees hips shoulders
continue working
left knee patell replacement 2 months ago
after the fall knocked the left patella
saw Dr Castle 31/5/21”
On 14 July 2021, Dr Castle noted that the applicant had undergone left knee patellofemoral joint stabilisation and revision. The applicant had significant swelling and bleeding post operatively. Subsequently, there was a wound breakdown and a large haematoma. Dr Castle arranged an urgent admission to hospital and operative debridement.
On 20 August 2021, Dr Hyasat referred the applicant to Dr Bradley Prestidge, noting:
“d/c from hospital aching back and shoulders”
Dr Prestidge made a note referring to lower back pain on 4 September 2021. Dr Gray of the same practice noted “Sore in L LB” on 20 November 2021.
An Allied Health Recovery Request completed by Dr Gray on 4 December 2021 provided a diagnosis, including lower back/hip dysfunction and left knee infection. The applicant’s goals included being able to walk/sit without pain in the hip/lower back. Treatment was to include mobilisation of the hip and lower back.
At a review on 6 December 2021, Dr Castle noted the applicant experienced numbness from his mid patella region, and below, worse in the L4 and L5 distribution. The applicant had trouble lifting his leg under control, causing difficulties when driving.
On 14 December 2021, Dr Hyasat noted:
“saw dr Castle last week
knee scares start heeling
wearing special shoes
not using crutches
can't sit for long
acn't walk for long
finished abx
-left hip still getting pain
had PRP injection into left hip area already
had x2 injection and booked for 3d
doing self physiotherapy”
On 7 April 2022, Dr Hyasat recorded:
“-lower back pain radiating to left hip and knee
pins and needles below left knee level
restricted flexion and extension of spine
in pain almost all the time
taking pain killers when needed
-left hip pain
has been rtipping over
limping
can't squad”
Dr Hyasat referred the applicant for an MRI of the lumbar spine and left hip. The report of an MRI of the lumbar spine performed on 10 April 2022 noted:
“Left paracentral disc protrusion causing impingement of the descending left S1 nerve and potentially exiting left LS nerve. Consider performing a left LS-S1 epidural steroid injection.”
On 2 May 2022, Dr Hyasat reviewed the MRI of the lumbar spine and referred the applicant to Dr Luke Inman. The letter of referral to Dr Inman described lower back pain radiating to the left foot.
Dr Inman prepared a report on 10 May 2022 in which he provided a diagnosis as follows:
“Left lumbosacral spine pain radiating to the lateral hip, posterolateral thigh, to the foot dorsally and plantar aspect with associated mild weakness of the left lower limb, progressively worsening, due to:
1. Left-sided L5-S1 disk bulge creating narrowing around the left LS nerve root and transiting S1 nerve root, with radicular pain in L5 and S1 distribution and mild myotomal weakness, mainly in the left S1.
2. Left total knee replacement in 2020 with complications following a fall, requiring revision patellar replacement and subsequent complication of infection in August 2021, requiring antibiotics until December 2021, ongoing weakness of the quadriceps postoperatively remains.”
Dr Inman noted that the applicant had ongoing discomfort in the left hip radiating to the left lower limb and knee following the fall on 2 May 2021. There had been ongoing mild discomfort and swelling in the knee prior to the fall but this “significantly worsened” after the fall. Dr Inman commented:
“He has noted ongoing pain and restriction in function in the left knee since. What is more concerning is he has developed a worsening discomfort in the left lumbosacral spine radiating to the lateral hip and lower limb over the past one year and worsening weakness and balance disturbance over time.
There is associated numbness and paraesthesia that can occasionally radiate to the left foot dorsally and at the plantar aspect and associated numbness in this region.
Discomfort is present at all times. It is worsened with walking beyond 5 km, but he can handle quite a fair distance of walking without major limitation. He is aware of discomfort with sitting and also at night that is quite constant. Discomfort is worse with lower limb radiation when walking down stairs and hills and a noticeable difference in power and stability when walking down stairs and hills. He has no prior history of lower back pain radiating to the lower limbs in the past.”
Dr Inman noted that the MRI of the lumbar spine confirmed severe discovertebral pathology at the left L5-S1 creating severe narrowing at the foramina affecting the L5 nerve root and transiting the S1 nerve root. This was likely to correspond with the pain and weakness. Dr Inman recommended surgical review, physiotherapy and Lyrica for nerve pain. With regard to injectables, Dr Inman commented:
“I would not recommend an injection of cortisone in the left LS-51. It will not improve his pain, and if any surgery is performed, particularly in the two to three months to follow, it will increase his risk of infection as found in recent studies.”
Dr Inman prepared a referral to Dr Andrew Cree, who saw the applicant on 20 May 2022. In a report of that date, Dr Cree noted the work injury in May 2021 and said the applicant reported ongoing pain about the back with radiation to the left hip, gluteal region, thigh and calf since. The applicant had associated numbness and felt his pain was worsening. Dr Cree noted that the applicant walked with an antalgic gait on the left and noted the MRI findings. Dr Cree commented:
“We discussed options in management including continued conservative care versus cortisol injections and surgery. Given there is some concern regarding possible S1 paresis I think it would be reasonable in light of the time course to proceed down a surgical pathway. I have therefore discussed the nature of L5/S1 discectomy and neurolysis. The benefit of such surgery should include the relief of leg pain but back pain is unlikely to be altered by such a procedure.”
In a letter to the insurer dated 20 May 2022, requesting approval for an L5/S1 discectomy and neurolysis, Dr Cree stated:
“As a result of a workplace injury he has a left LS/S1 disc prolapse with possible S1 paresis.”
Dr Hyasat prepared a report for the insurer on 14 June 2022 in which he described the applicant’s current symptoms of lower back pain radiating to the left hip and left knee and pins and needles below the left knee. The applicant reported occasionally tripping and walking with a limp.

In response to a question as to how the back injury was related to the workplace injury on 21 May 2022, Dr Hyasat sated:
“Mr Broadbent has developed back pain due to a compensatory straining of his lower back following his left knee injury and left gluteus medius tear.”
Dr Hyasat said that the applicant did not report lower back pain prior to the knee injury.

Dr Endrey-Walder

The applicant relies on medico-legal opinions given by general and trauma surgeon, Dr Peter Endrey-Walder on 10 February 2022 and 27 June 2022.
Dr Endrey-Walder took a history of the work injury and the pre-accident history involving the applicant’s left knee.
Dr Endrey-Walder noted the revision left knee replacement in April 2021 and the applicant’s return to work four weeks after the surgery. It was noted that the applicant had a subluxing patella on 17 May 2021, which Dr Castle related to somewhat injudicious physiotherapy treatment.
The post-injury treatment of the left knee was recorded in a manner consistent with the treating evidence before the Commission.
Dr Endrey-Walder recorded that the applicant complained of limping occasionally, ongoing pain, difficulty squatting and instability in the left knee. On examination, however, Dr Endrey-Walder said he did not notice a limp when the applicant walked into the examination room.
In his supplementary report, Dr Endrey-Walder noted that he made no particular reference to a back injury in his first report. Dr Endrey-Walder said he had noted that, from her reports, it appeared that the applicant had not made mention of back related injury or symptoms to Dr Castle. The applicant responded that he told Dr Castle about the back pain but the knee and left hip pain took priority.
Dr Endrey-Walder noted the treating medical evidence described above.
Dr Endrey-Walder observed that the applicant walked with a wide based gait slowly, displaying no unilateral limp.
Dr Endrey-Walder gave the opinion:
“Given the mechanism of the accident, it is not difficult to see how it would have impacted on his lower back, but it appears that at the time and over the ensuing months it was the injury to his right shoulder and left hip, most especially the patella of the left knee, which would have taken priority, both in his assessment and treatment.
The first time he appears to have complained of actual back pain to his GP was in April this year, and one would readily acknowledge that the subsequent MRI scan of the lumbar spine does suggest possible, indeed likely, radiculopathy involving the left S1 nerve root.
Given the above, Dr. Cree's recommendation for a decompression procedure seems most reasonable. At the same time, perhaps a CT-guided L5 and S1 nerve root injection, as a diagnostic test, should be considered prior to surgical intervention.
Quite apart from the direct injury that he would have suffered landing on his back, I would expect that his grossly abnormal ambulation after complicated operations on his left knee in the post-accident period, would have contributed to the aggravation and exacerbation of any lower back condition.”

Dr Haig

The applicant was seen by orthopaedic surgeon, Dr Ron Haig at the request of the insurer, who prepared a report on 10 September 2021.
Dr Haig took a history of the right total knee replacement and subsequent left total knee replacement in June 2020. Post-operatively the left knee was painful and a revision surgery was performed on 1 April 2021. Following that surgery, the applicant described swelling, weakness and pain but returned to work.
Following the injury on 21 May 2021, the left knee was more painful and the applicant underwent a third operation. Dr Haig noted the applicant had undergone two further operations, commenting:
“I believe work has been a substantial contributing factor to the injury. It is so that he underwent surgery on 1/04/21 and it appears he was able to return to work after that. He then suffered the work- related injury on 21/05/21 and has since been unable to return to work and has undergone surgery on 3 further occasions.”
In a supplementary report, dated 4 May 2022, Dr Haig described the applicant’s current status as follows:
“He complains of weakness and instability of the knee and for this reason avoids stairs. When questioned about pain he referred to constant pain but elaborating by describing this as ‘discomfort ... irritating’. In terms of his left hip, he complains of a ‘constant agony’ where he points in well localised fashion to the area of the greater trochanter. He states he limps because of this.”
Dr Haig maintained his earlier opinion stating:
“In terms of the left knee, he did have a left knee replacement with a less than ideal outcome and apparent malalignment/subluxations of the patella. In the fall there was a definite exacerbation and deterioration of this pre-existing patella subluxation in that he frankly dislocated it.
…
I do consider his employment to be the main contributing factor to the exacerbation/deterioration of his left knee (total knee replacement).”
In a third report, dated 1 July 2022, Dr Haig was asked to comment on the applicant’s lumbar spine condition. Dr Haig made no diagnosis for the lumbar spine, noting that the applicant made no complaint regarding the lumbar spine to him. Dr Haig did not examine that body part, nor was any radiology available to him. As a result, Dr Haig could not comment on any treatment or diagnosis. Dr Haig stated:
“I have no reason to believe he sustained injury to his lumbar spine. He sustained injury to various other body parts, namely his right shoulder, left hip and left knee. It would be reasonable to assume that if he sustained injury to his lumbar spine that would have been a complaint around the time of the subject injury.”

Applicant’s submissions

The applicant referred to the description of the injurious event in his statement and the ARD. Although the applicant’s left knee had previously been injured, it was injured further in that event. The applicant said he also felt pain in the lower back although the focus of treatment was the left knee.
The applicant described walking with a very heavy limp and significantly altered gait. The applicant described increasing lower back pain and left hip pain as a result of the way he was walking and limping.
The applicant underwent three surgical procedures to the knee after the injury. Dr Hyasat noted that the applicant had an aching back on 20 August 2021 and referred the applicant for chiropractic treatment.
The applicant noted that an Allied Health Recovery Request from his chiropractor dated 4 December 2021 referred to being unable to walk, sit without pain in the lower back and a resolving infection in the knee. The applicant submitted that the unavoidable inference was that walking was causing the applicant’s back pain.
The applicant was referred to specialists for his back pain. In May 2022, the applicant saw Dr Inman who noted progressively worsening back pain since the injury and subsequent complications in the left knee. Dr Inman noted that the applicant’s symptoms worsened with walking, especially down stairs and hills. The applicant had no prior history of back pain radiating to the lower limbs.
Dr Castle had noted the ongoing left knee symptoms including numbness worse in the L4 and L5 distribution.
The applicant referred to the medico-legal evidence and noted that although no history of back pain was taken in Dr Haig’s first examination, the insurer had directed Dr Haig to report on other matters. The applicant’s back symptoms had become progressively worse. Dr Haig had commented that he found no inconsistencies or exaggeration in the applicant’s presentation.
The applicant noted that he was seen by Dr Endrey-Walder in February 2022. Although at that stage, the applicant had reported back pain to his general practitioner, chiropractor and Dr Castle, Dr Endrey-Walder did not obtain a history of back symptoms and provided no opinion in relation to the lumbar spine. It was noted, however, that the applicant limped occasionally.
The applicant referred to Dr Hyasat’s report to the insurer, submitting that he was well placed to assess the applicant’s symptoms and their onset. Dr Hyasat had formed the view that applicant’s back pain had come on in compensatory fashion. This was consistent with the applicant’s evidence and Dr Inman’s description of a progressive development of pain.
In his supplementary report, Dr Endrey-Walder gave the view that leaving aside the issue of direct injury, the applicant’s grossly abnormal ambulation after the complicated operations on his left knee in the post-accident period, would have contributed to the aggravation and exacerbation of any lower back condition.
The applicant noted that for a consequential condition, a simpler test of material contribution applied to determine whether the need for treatment resulted from the workplace injury.
There was no evidence of any intervening cause. The evidence from the applicant’s general practitioner, Dr Inman and Dr Endrey-Walder established a chain of causation involving a progressive decline of the applicant’s symptoms.
The applicant noted that the recent evidence of treatment by injection was a conservative measure approved by the insurer. There was no evidence of other alternative treatments available.
The applicant noted that in preparing his most recent report, Dr Haig did not re-examine the applicant. The report was prepared on the papers without the benefit of Dr Inman’s report, the MRI scan or Dr Endrey-Walder’s most recent report. This explained Dr Haig’s comment that he could see no relationship between the applicant’s lumbar spine and the 21 May 2021 injury. Dr Haig provided no other reasoning and did not deal with the allegation of a consequential condition due to altered gait commented on by the other doctors. In this regard, Dr Haig was at a significant disadvantage in answering questions from the insurer.
In the circumstances, the applicant submitted that the Commission would prefer the evidence of Dr Endrey-Walder and order that the respondent pay the costs of and incidental to the proposed surgery.

Respondent’s submissions

The respondent submitted that the Commission would not be satisfied that the applicant had discharged his onus of demonstrating that the surgery is reasonably necessary as a result of the injury on 21 May 2021.
The respondent submitted that the Commission could not on the evidence find a material contribution to the need for surgery as a result of the work injury.
The respondent submitted that the applicant had undergone a regime of knee treatment by Dr Castle since 2012. In reports dating from 2012 and 2013, Dr Castle had noted significant degenerative changes at the right knee and noted that in time of the right total knee replacement would be required. Issues with subluxation, instability, increasing pain and stiffness and difficulty with stairs were noted.
By May 2020, the left knee was also in need of replacement. Issues with the left hip were also noted prior to the work injury.
The respondent submitted that this history of prior treatment was given little attention in Dr Endrey-Walder’s reports. Dr Endrey-Walder referred, in a fleeting fashion, to the previous surgeries.
The reports of Dr Castle indicated that the left knee replacement had not gone well. Revision knee replacement was required. This was performed just a few weeks before the work injury. In her report dated 17 May 2021, just four days before the injury, Dr Castle described the applicant feeling a tearing sensation in his knee when performing knee flexion exercises on instruction by a hospital physiotherapist. Dr Castle said it appeared the medial repair had been ripped apart and a CT scan was required.
In Dr Castle’s first report following the injury, she described the knee being unstable and requiring surgery. The respondent submitted that it was difficult on this evidence to see the difference between the knee condition before and after the subject injury.
The respondent contrasted Dr Castle’s reports with the applicant’s statement as to what occurred on the day of the accident. The applicant described his knee sticking out, excruciating pain and popping the knee back in.
The respondent submitted that the Commission would not be persuaded that there was a material contribution to the need for the proposed surgery due to the lack of evidence and commentary on the difference between the state of the applicant’s left knee immediately before and after the injury. Although the applicant progressed to further surgery, no evidence had been provided as to what the injury to the knee was.
Following the injury, the applicant kept working and did not see his general practitioner until June. Although he did see Dr Castle earlier, that appointment had been booked in already. The respondent submitted that no doctor had come to grips with the pathology Dr Castle was dealing with before and after the injury.
The respondent submitted that operation reports ought to have been obtained and better commentary obtained from the medicolegal experts. It was, however, the applicant’s onus to demonstrate a material contribution to the need for surgery.
The respondent submitted that there was an absence of contemporaneous complaints of back symptoms following the injury. Following the injury, the applicant attended Dr Castle on a number of occasions. Although she recorded left leg numbness, worse in an L4/5 distribution, this was not indicative of back pain.
Although the applicant said he reported back pain to his treating practitioners in 2021, this was not recorded in the way his complaints of knee, shoulder and hip pain were.
The respondent acknowledged the chiropractor’s Allied Health Recovery Request, dated December 2021, but noted that the applicant had previously undergone right and left total knee replacements. No commentary had been provided as to whether these surgeries caused altered gait prior to the work injury. The contribution of the pre-injury conditions was not commented upon by any expert to the extent necessary to discharge the applicant’s onus.
The radiological evidence also suggested significant pre-existing degenerative change at the applicant’s left hip. No medical commentary on the contribution of that condition had been provided.
The respondent submitted that there were difficulties with the reasoning process of Dr Endrey-Walder. Dr Endrey-Walder commented in his first report that he did not notice any limp as the applicant walked into the examination room. No complaints or examination of the back were recorded in Dr Endrey-Walder’s first report. In his re-examination of the applicant, Dr Endrey-Walder noted a wide based gait but no unilateral limp.
The respondent observed that Dr Haig did not refer to any back injury and no symptoms had been volunteered to Dr Haig.
The respondent submitted that it was difficult to discern the compensatory straining described by Dr Hyasat from the evidence. Dr Haig recorded a slight limp but the respondent said this was insufficient evidence of an altered gait pattern due to a material contribution from the work injury.
The respondent submitted that Dr Endrey-Walder failed to give a direct opinion, suggesting it was “not difficult to see” that an injury could have occurred. Dr Endrey-Walder’s reference to “grossly abnormal ambulation” was difficult to reconcile with the absence of a limp on examination. Dr Haig only found a slight limp. There was no other evidence of “grossly abnormal ambulation”.
The respondent submitted that Dr Endrey-Walder gave no commentary on the applicant’s prior conditions or the pathology shown on the MRI scan. Dr Endrey-Walder did not deal with the absence of complaint of lumbar symptoms for almost a year following the work injury.
The respondent noted that the symptoms in the lower back were recorded in the chiropractor’s clinical notes prior to the subject injury.
The respondent noted the relevant legal tests as described in Murphy v Allity Management Services Pty Ltd[1], Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2], Kumar v Royal Comfort Bedding Pty Ltd[3] and Kooragang Cement Pty Ltd v Bates[4]. The respondent submitted that the applicant had failed to discharge his onus and there should be an award for the respondent.
[1] [2015] NSWWCCPD 49.
[2] [2008] NSWCA 246.
[3] [2012] NSWWCCPD 8.
[4] (1994) 10 NSWCCR 796 at [810].

Applicant’s submissions in reply

The applicant relied on the same legal authorities as the respondent and referred also to Moon v Conmah[5].
[5] [2009] NSWWCCPD 134.
The applicant submitted that explanation by a medical expert may not always be required. There were situations where the circumstances were so obvious that no real explanation was necessary. The Commission was required to consider the totality of the evidence.
The applicant submitted that Dr Haig had received a history of the previous right and left knee issues. Dr Haig described the various surgeries and found no inconsistency in the applicant’s presentation. Dr Haig noted that the applicant was able to return to work following the April 2021 surgery but since the fall on 21 May 2021 had been unable to return to work. Dr Haig found that the effects of the work injury on 21 May 2021 had not resolved. Dr Haig’s opinions were consistent with the insurer’s stance in accepting liability for a left knee injury. The insurer had paid for the last three surgeries.
The applicant submitted that back symptoms had been noted in late 2021 in the treating evidence. Although the condition appeared to have worsened in April 2022, there were prior references to back symptoms.
The applicant noted that Dr Hyasat had provided evidence that the applicant walked with an altered gait.
The applicant submitted that, considering the evidence as a whole, including the applicant’s evidence, the evidence from his specialists, his general practitioner and Dr Endrey-Walder, the relevant onus was discharged.
The applicant submitted that no weight would be given to Dr Haig’s evidence, given the selective evidence provided to him.
The applicant submitted that although an injury to the lumbar spine was relied upon, his primary submission was that there was a consequential condition arising from the injury to his left leg on 21 May 2021. Injury to the applicant’s left hip was not placed in issue by the insurer. Although Dr Endrey-Walder said he did not notice a limp at the time of his examination, that did not mean that a limp had not been present.
On the balance of probabilities, the applicant submitted that the Commission would be satisfied that the applicant sustained a consequential condition to his back, leading to the need for surgery.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant, in these proceedings, relies on an “injury” to the lumbar spine in the event on 21 May 2021, or, in the alternative, a consequential condition at the lumbar spine resulting from the injury to his left leg on that date.

The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. In this regard, the comments of Deputy President Roche in Moon v Conmah[6] at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[6] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[7], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[7] [2013] NSWWCCPD 4.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan[8] Snell DP referred to the decisions in Moon v Conmah[9] and Kumar v Royal Comfort Bedding[10] and observed:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
[8] [2016] NSWWCCPD 23.
[9] [2009] NSWWCCPD 134.
[10] [2012] NSWWCCPD 8.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[11], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[11] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing on the balance of probabilities that he sustained an injury or consequential condition affecting his lumbar spine. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[12] 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 34; (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 691 at 712.”
[12] [2008] NSWCA 246.
The evidence on which the applicant relies to establish an “injury” for the purposes of s 4 of the 1987 Act is not persuasive. Although the applicant has described recalling feeling immediate pain in his lower back in his statement prepared in June 2022, that recollection is not supported by the contemporaneous treating evidence.
The first record of the injurious event on 21 May 2021 recorded by Dr Castle refers to the impact on the applicant’s left knee. Dr Hyasat also referred to pain in the applicant’s hips and shoulders when he was first consulted after the event. No reference to lower back pain appears in the treating evidence until the applicant was discharged from hospital in August 2021 when Dr Hyasat described an aching back and shoulders. References to left-sided lower back pain appear thereafter in the records prepared by the applicant’s chiropractors at Prestidge Chiropractic.
In the intervening period, the applicant had been seen by both Dr Castle and Dr Hyasat on multiple occasions. Although the applicant suggests that he reported symptoms to his doctors but treatment of his knee was prioritised, the omission of any reference to back symptoms in the contemporaneous evidence is significant.
The omission of any reference to lower back symptoms in the early medicolegal evidence is also significant. Both Dr Haig and Dr Endrey-Walder were asked to assess the degree of permanent impairment resulting from the injury on 21 May 2021. At the relevant time, the applicant was assisted by legal representation. The failure to mention a lumbar spine injury to the medicolegal experts in this context is a matter to which I have given weight.
Although Dr Endrey-Walder has subsequently provided an opinion on the question of whether an injury occurred, his opinion is indirect and not compelling. Dr Endrey-Walder’s opinion goes no further than to suggest that the occurrence of injury to the lower back was plausible given the mechanism of the accident. The priority given to treatment of the applicant’s left knee, hip and right shoulder was identified as a possible explanation for the absence of contemporaneous evidence of a back injury.
Dr Haig, on the other hand, has suggested that if the applicant had sustained an injury to his lumbar spine, it would be reasonable to assume that he would have made a complaint about it around the time of the injurious event.
In all the circumstances, I am not satisfied on the evidence before me that the applicant sustained an injury to his lumbar spine on 21 May 2021 pursuant to s 4 of the 1987 Act.
The evidence of a consequential lumbar spine condition is more compelling. As indicated above, the first reports of lower back pain appeared following the applicant’s discharge from hospital after undergoing series of surgeries to the left knee performed by Dr Castle.
Although the respondent has in these proceedings made submissions suggesting a lack of evidence of any pathological change in the applicant’s left knee following the injurious event, liability for a left knee injury was accepted by the insurer and the surgeries performed by Dr Castle after the injurious event paid for by the insurer.
The insurer’s acceptance of liability was consistent with the medico-legal opinions of both Dr Haig and Dr Endrey-Walder.
Although both experts accepted that the applicant had pre-existing pathology at the left knee and were aware that as recently as April 2021 the applicant had undergone a revision left knee replacement, they were in uniform agreement that the event on 21 May 2021 had aggravated that pathology. Dr Haig, in particular, noted that the applicant had been able to return to work following the April 2021 surgery but not after the work injury. Although the applicant had a less than ideal outcome from the left knee replacement and continued with apparent malalignment and subluxations of the patella, there was a definite, exacerbation and deterioration caused by a frank dislocation of the patella in the fall on 21 May 2021.
I accept that the treating reports of Dr Castle are unhelpful in identifying the effects of the 21 May 2021 fall on the left knee condition. Her reports have not, however, been prepared in anticipation of legal proceedings. As noted by the applicant, the Commission’s task is to consider the totality of the evidence.
I am satisfied that there was an injury to the applicant’s left knee in the event on 21 May 2021 in the manner described by Dr Haig. This injury led to the need for the further surgery performed by Dr Castle. It is clear from the treating evidence that the applicant suffered significant complications following that surgery, requiring two further surgical procedures and extended periods of hospitalisation.
I have also noted that Dr Castle’s reports refer to treatment for an injury to the applicant’s left hip in the injurious event, liability for which has not been disputed by the insurer.
The applicant has described walking with a very heavy limp and significantly altered gait following his operations and discharge from hospital in August 2021. This was consistently reported to Dr Haig and Dr Endrey-Walder, although by the time he was seen by the medicolegal experts there may have been some improvement in the applicant’s gait.
Dr Haig first saw the applicant in September 2021 via telehealth. The applicant’s knee was swollen and appeared to lack full extension at that stage. The applicant remained on intravenous antibiotics. No comments were made with regard to any altered gait.
When Dr Haig saw the applicant in May 2022, a mild limp was observed.
Dr Endrey-Walder did not see the applicant until February 2022. Although he did not observe any limp at either of his examinations, limping was reported by the applicant and apparently accepted by Dr Endrey-Walder in giving his opinion.
Difficulties with walking are recorded in the treating evidence. Records from the applicant’s chiropractor referred to difficulties walking and sitting without pain. In December 2021, Dr Hyasat noted that the applicant was unable to sit or walk for long. Limping and occasional tripping were recorded by Dr Hyasat in a clinical note on 7 April 2022 and in his report to the insurer in June 2022.
Dr Inman associated the applicant’s lumbar symptoms with weakness of the left lower limb and weakness of the quadriceps post operatively.
Dr Cree noted that the applicant walked with an antalgic gait on the left when he examined the applicant in May 2022.
I accept on the basis of this evidence that the left knee injury affected the applicant’s gait.
There is, in the applicant’s lay evidence and the treating medical evidence, evidence of pre-existing lumbar symptoms. The records from the applicant’s chiropractor suggest intermittent treatment for lower back symptoms particularly on the right. In contrast, following the work injury, radicular symptoms have been described on the left side. Dr Hyasat has given evidence that the applicant had not reported lower back pain to him prior to the knee injury. There is no evidence of investigations or other specialist treatment of lumbar symptoms prior to the work injury.
The treating evidence is therefore consistent with the applicant’s lay evidence of a progressive worsening of his lumbar symptoms following the left knee injury.
The radiological evidence is suggestive of pre-existing pathology at the lumbar spine. There is also evidence of pre-existing conditions at both knees and the left hip which may have contributed to the applicant’s lumbar spine condition. It is likely that these factors have contributed to the present need for surgery as recommended by Dr Cree. In order for the surgery to be compensable, however, the applicant need only establish that there has been a material contribution to the need for surgery by the work injury on 21 May 2021.
In Murphy v Allity Management Services Pty Ltd[13] Roche DP stated:
“[57] …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.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[13] [2015] NSWWCCPD 49.
Having regard to the applicant’s evidence, the evidence of his treating practitioners and the evidence of Dr Endrey-Walder, I am satisfied on the balance of probabilities that the injury to the applicant’s left knee has made a material contribution to the present need for surgery.
The only evidence to the contrary appears in the final report of Dr Haig. In preparing that report, however, Dr Haig was not provided with the reports of Dr Inman and Dr Cree. Dr Haig does not appear to have had the benefit of the radiological investigations of the lumbar spine. Dr Haig’s opinion appears focused on whether there was a frank injury to the lumbar spine rather than the question of whether there may have been a consequential condition affecting the spine due to the left leg injury. For these reasons, I am not satisfied that there is a proper foundation for the acceptance of the opinions expressed in Dr Haig’s final report.
Although Dr Endrey-Walder’s reasoning and, in particular, his consideration of the pre-existing conditions and radiology were criticised in the respondent’s submissions, I am satisfied that he did have before him a sufficiently complete history as to provide a proper basis for the acceptance of his opinion that grossly abnormal ambulation after the complicated operations on the left knee in the post accident period would have contributed to the applicant’s lower back condition.
Consistent opinions on the need for the surgery have been provided by Dr Endrey-Walder, Dr Cree, Dr Inman and Dr Hyasat. Dr Haig’s comment that he was not able to see that any surgery to the lumbar spine was necessary, must be viewed in the context that Dr Haig was not provided with any radiological evidence or other evidence of a lumbar spine condition.
The applicant has undergone chiropractic treatment and recently underwent an injection to the affected area of the spine without benefit. Dr Inman has explained that injections were not likely to improve the applicant’s pain. In all the circumstances, I am satisfied that the surgery proposed is appropriate, potentially effective and has been accepted by the medical profession as such. The cost of the procedure is not insignificant but I am not satisfied that other alternative treatments are available.
For all of these reasons, I am satisfied that the L5/S1 discectomy and neurolysis recommended by Dr Cree is reasonably necessary as a result of the injury on 21 May 2021 for the purposes of s 60 of the 1987 Act.
There will be an order for the respondent to pay the costs of and incidental to the recommended surgery in accordance with s 60 of the 1987 Act on production of appropriate accounts and/or receipts.

[2022] NSWPIC 571

14 October 2022