Bryce v State Transit Authority of NSW
[2021] NSWPIC 304
•24 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bryce v State Transit Authority of NSW [2021] NSWPIC 304 |
| APPLICANT: | Alan Bryce |
| RESPONDENT: | State Transit Authority of NSW |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 24 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Order sought by worker for the respondent to pay cost of right knee arthroscopy and meniscal repair; worker claims a consequential condition affecting the right knee due to altered gait and limping as a result of accepted lumbar spine injury; reference to Moon v Conmah P/L; worker claims need for surgery is reasonably necessary as a result of work injury; reference to Murphy v Allity Management Services P/L; Held – worker has a consequential condition affecting his right knee as a result of injury to lumbar spine; work injury materially contributes to the need for surgery to the right knee; order made pursuant to section 60 (5) and 61 (4A) of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant has a consequential condition affecting his right knee as a result of the injury he sustained to his lumbar spine on 4 August 2014. 2. The right knee arthroscopy and meniscal debridement/repair for a flipped medial meniscal tear proposed by Prof Al Muderis is reasonably necessary as a result of the injury sustained by the applicant on 4 August 2014. |
| ORDERS MADE: | 1. Pursuant to section 60(5) and section 61(4A) of the Workers Compensation Act 1987, the respondent is to pay for the right knee arthroscopy and meniscal debridement/repair for a flipped medial meniscal tear proposed by Prof Al Muderis, and expenses reasonably incidental to that surgery. |
STATEMENT OF REASONS
BACKGROUND
Alan Bryce, the applicant in these proceedings, sustained injuries to his cervical spine and lumbar spine in the course of his employment as a diesel mechanic with the respondent, State Transit Authority of NSW, with a deemed date of injury of 4 August 2014.
State Transit Authority has admitted liability for these injuries.
Mr Bryce has undergone several operations as a result of these injuries:
(a) a C6/7 fusion on 8 March 2016;
(b) a L3/4 foraminotomy on 29 August 2016;
(c) a L3/4 fusion on 22 May 2019;
(d) a C6/7 foraminotomy on 28 August 2019, and
(e) a L5/S1 decompression and foraminotomy on 1 July 2020.
Mr Bryce claims that he has developed a consequential condition affecting his right knee due to an altered gait and limping as a result of ongoing pain in his lumbar spine and down his left leg.
Mr Bryce seeks an order pursuant to section 60(5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pays the costs of a right knee arthroscopy and meniscal debridement/repair for a flipped medial meniscal tear proposed by Prof Al Muderis.
State Transit Authority has issued dispute notices dated 27 July 2020 and 18 December 2020 wherein it disputes that Mr Bryce has sustained a consequential condition affecting his right knee and that the surgery proposed by Prof Al Muderis is not reasonably necessary as a result of the injury sustained by Mr Bryce on 4 August 2014.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether Mr Bryce has a consequential condition affecting his right knee as a result of the injury to his lumbar spine on 4 August 2014, and
(b) whether the right knee arthroscopy and meniscal debridement/repair for a flipped medial meniscal tear proposed by Prof Al Muderis is reasonably necessary as a result of the injury sustained by Mr Bryce on 4 August 2014 (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 6 August 2021. 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.
Mr Austin appeared for Mr Bryce, instructed by Mr Cham. Mr Rickard appeared for State Transit Authority, instructed by Mr Turner.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed on behalf of Mr Bryce on 2 August 2021.
Oral evidence
There was no application to adduce oral evidence or to cross examine Mr Bryce.
The applicant’s evidence
Mr Bryce has provided a statement dated 23 April 2021.
Mr Bryce states that in 2015 he began to notice left leg pain and “intermittently I began to favour my right leg to take the weight of my left leg.”
Mr Bryce states that in 2016 “my left leg was in full onslaught” and that he was now constantly favouring his right knee.
Mr Bryce states that between the two operations he underwent in May and August 2019, he noticed very bad pains in his right knee. He states that by the end of 2019 his right knee “had had enough and began to blow out on me and stop working.”
Mr Bryce also states: “I can say without remembering exactly that my walk was altered and I used my right leg more because of my left leg pain.”
Mr Bryce states that Prof Al Muderis intended to perform surgery on the right knee the day after Mr Bryce underwent lower back surgery on 1 July 2020, but State Transit Authority would not pay for the surgery.
Mr Bryce states that he has ongoing pain and discomfort in his lower back and down his legs and is unable to walk for extended periods of time.
The medical evidence
The operations which Mr Bryce underwent to his lumbar spine in May 2019 and July 2020, and to his cervical spine in August 2019, were performed by Dr Assaad. In his first report to Mr Bryce’s general practitioner dated 11 February 2019, Dr Assaad records that Mr Bryce has lower back pain and paraesthesia in his legs and that left anterior thigh pain and discomfort has been troubling Mr Bryce for some time.
In a report dated 15 July 2019, being almost two months after Mr Bryce underwent surgery to his lower back, Dr Assaad records that Mr Bryce’s lower limb symptoms “have significantly improved” and that his back pain is improving.
However, Dr Assaad records nine months later on 2 April 2020 of Mr Bryce having severe right-sided knee pain, which is localised to behind the patella, and severe pain radiating along the left leg.
In a report dated 29 September 2020, which almost three months after Mr Bryce underwent a L5/S1 decompression and foraminotomy, Dr Assaad records Mr Bryce walking with a limp and writes: “I think it is related to him favouring the right leg due to his symptomatic lumbar spine in the past.”
Dr Assaad also records in a further report dated 6 November 2020 that Mr Bryce is walking with a limp.
In a report dated 2 July 2020, Prof Al Muderis records that Mr Bryce presents with a six month history of right knee pain. He writes that it appears that Mr Bryce had some radiculopathy going down the left leg for which Mr Bryce was favouring the right leg and which seems to have caused the problem with the right knee.
Prof Al Muderis writes that a MRI scan shows a tear of the medial meniscus posterior horn and Mr Bryce should have an arthroscopy to address the meniscal pathology which is Mr Bryce’s main cause of pain.
Prof Al Muderis has provided a report to Mr Bryce’s solicitors dated 18 November 2020. In that report Prof Al Muderis writes:
“It is reasonable to explain an aggravation of right knee pain due to him favouring his right side as a consequence of longstanding radicular pain affecting his left leg. While we cannot substantiate the exact cause of his right knee medial meniscal tear (whether that was a direct result of his initial work injury, or wear and tear over time), it is possible that it has become symptomatic due to increased loading through the right knee as it is his favoured leg.”
Prof Al Muderis also writes:
“He does have a varus deformity to both knees, which is likely an underlying condition that would predispose him to loading the medial compartments of both knees. However if he did not have a work-related injury causing him to favour his right knee, it is possible he might not ever have become symptomatic from this varus malalignment. While we cannot substantiate the exact cause of the pathology in his right knee (whether it is an underlying condition, an indirect cause from his work injury, or a separate incident altogether), it is clear that it is now symptomatic because it is his favoured knee.”
Prof Al Muderis is also asked if he disagrees with an opinion from Dr Powell that there is insufficient evidence to conclude that Mr Bryce’s right knee condition is a result directly or as a consequence of an injury sustained in the course of his employment and responds: “We do not disagree with Dr Richard Powell’s assessment.”
Dr Y K Lee, orthopaedic surgeon, has provided a report at the request of Mr Bryce’s solicitors, dated 17 November 2020. Dr Lee records that Mr Bryce has not had an injury to the right knee but it became painful and sometimes swollen because Mr Bryce was favouring the left side. Dr Lee also records that Mr Bryce complained of severe back pain radiating down the left leg.
Dr Lee opines that Mr Bryce has a torn medial meniscus in the right knee and it is reasonable to conclude that limping after back surgery has caused the injury to the medial meniscus. Dr Lee writes:
“In my opinion, I consider that the symptoms displayed by Mr Bryce and the pathology demonstrated in the right knee indicate that there is a consequential injury to the right knee as a result of favouring the left leg due to the ongoing pain in the lumbar spine. There is no further history of injury, and the only possible injury is the way he was walking. It is therefore reasonable to conclude that he injured his right knee because of the way he was limping.”
Dr Lee also considers that the arthroscopic surgery proposed by Prof Al Muderis is reasonable and necessary.
Dr Powell, orthopaedic surgeon, has provided a report at the request of State Transit Authority, dated 29 July 2020. That report addresses requests made by Mr Bryce for a L5/S1 decompression and the right knee arthroscopy proposed by Prof Al Muderis. In regard to the claim made by Mr Bryce that he has a consequential condition affecting his right knee and for State Transit Authority to meet the cost of the right knee arthroscopy proposed by Prof Al Muderis, Dr Powell opines:
“I do not believe there is sufficient evidence to conclude that his current right knee condition is a result either directly or as a consequence of any injury sustained in the course of his employment. The surgery proposed by Dr Al Muderis may well be reasonable in the appropriate clinical setting to address the pathology identified on the MRI scan though I do not believe that it can be conclusively demonstrated that this pathology is the result of his altered gait pattern. The cause of the meniscal pathology is not clear though I do note he is noted to have a moderate varus malalignment on his 3ft standing films and this is likely to represent a contributing factor.”
FINDINGS AND REASONS
Whether Mr Bryce’s right knee condition is a consequence of the injury he sustained to his lumbar spine
The determination of whether a pathological condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45-46]:
“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.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
34.Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). Kirby P said in Kooragang at [462]:
“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”.
35.Kirby P then said at [463-[464]:
“…What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions”.
Mr Rickard for State Transit Authority submits that the opinion of Prof Al Muderis, which in his capacity as Mr Bryce’s treating specialist is integral to this dispute, never rises above a mere possibility of there being a connection between the problems Mr Bryce has had with his left leg and the meniscal tear in the right knee. Mr Rickard refers to Prof Al Muderis stating that it “seems” the problem with Mr Bryce’s right knee is due to favouring the right leg due to left leg radiculopathy and that it is “possible” that the right knee has become symptomatic due to increased loading through the right knee.
Mr Rickard also refers to Prof Al Muderis’ response that he does not disagree with the opinion of Dr Powell that there is insufficient evidence to conclude that Mr Bryce’s right knee condition is a result directly or as a consequence of an injury sustained in the course of his employment.
Mr Rickard submits that the opinion of Prof Al Muderis does not reach the standard necessary for the Commission to be satisfied on the balance of probabilities that Mr Bryce has developed a consequential condition affecting the right knee.
However, a tribunal may decide that a possible view of an expert can be a probable view once all of the relevant evidence is considered. In EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 (Bes), Herron CJ said at [242]:
“Medical science may say in individual cases that there is no possible connection between the events and the death, in which case of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there was a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable”.
In Woolworths Ltd v Christopher-Coates [2014] NSWWCCPD 14 (Christopher-Coates), President Keating referred to Bes, as well as Tubemakers of Australia Ltd v Fernandez [1975] 2 NSWLR 190; Morro v London Assurance [1972] WCR (NSW) 100; Australian Padding Co Pty Ltd v Zarb (1996) 13 NSWCCR 365, and said at [132]:
“Where a medical expert talks only in terms of a ‘possible’ view, or something that ‘might’ have been relevant, then the Arbitrator was entitled with reference to all of the other evidence in the matter to decide that is the probable view.”
From my review of the evidence, I consider that it is probable that Mr Bryce has developed restrictions and symptoms in the right knee as a result of the injury to his lumbar spine, in particular due to Mr Bryce putting additional pressure on the right leg due to ongoing pain being experienced down the left leg, having an altered gait, and limping.
Firstly, there is Mr Bryce’s own evidence. That evidence is somewhat brief, but I would accept that when that evidence is added to the history of Mr Bryce’s medical treatment, which has involved three major operations on the lumbar spine, it is reasonable to conclude that the development of symptoms in his left leg led to additional pressure upon the right leg and the alteration of his gait and consequent limping.
Then there is a consistent record made in the reports from Dr Assaad between February 2019 and November 2020 of pain extending down Mr Bryce’s left leg. Dr Assaad does record a significant improvement in the Mr Bryce’s lower limb symptoms in July 2019 after the L3/4 decompression some seven weeks earlier. However, by April 2020 Mr Bryce is again complaining of severe pain in the left leg, which warrants further surgery to the lumbar spine on 1 July 2020.
In September and November 2020 Dr Assaad records Mr Bryce walking with a limp and volunteers the observation to Mr Bryce’s general practitioner that he thinks the limp is related to Mr Bryce favouring the right leg due to symptoms from the lumbar spine.
The records and observations made by Dr Assaad provide a consistent and contemporaneous record of pain that Mr Bryce was experiencing in his left leg, which I accept has had an effect upon his gait and ability to walk.
Prof Al Muderis writes that it seems the problem with Mr Bryce’s right knee is due to favouring the right leg due to left leg radiculopathy and that it is possible that the right knee has become symptomatic due to increased loading through the right knee. He also writes that he does not disagree with the assessment made by Dr Powell that there is insufficient evidence to conclude that Mr Bryce’s right knee condition has resulted directly or as a consequence of his work injury.
However, Prof Al Muderis also opines that it is clear that Mr Bryce’s right knee is now symptomatic “because it is his favoured knee.” In my view that opinion is sufficient to meet the test set out in Moon as it applies to this dispute, namely whether the symptoms in the right knee have resulted from the injury to the lumbar spine.
I accept that opinion because of the role that Prof Al Muderis has as Mr Bryce’s treating specialist. I acknowledge that it would seem that Prof Al Muderis has only seen Mr Bryce on the one occasion and perhaps the usual weight afforded to the opinion of a treating specialist who has seen a patient over several consultations and perhaps several years should not be extended to the opinion provided by Prof Al Muderis.
Nonetheless, Prof Al Muderis bears responsibility for the treatment of the condition affecting Mr Bryce’s right knee, which is based not only on the diagnosis of that condition but also on the cause or causes of that condition. Prof Al Muderis has considered the cause or causes of the symptoms complained of by Mr Bryce in his right knee, and after due consideration has opined that Mr Bryce’s right knee is now symptomatic because it is his favoured knee.
As regards the different wording used by Prof Al Muderis on the cause of those right knee symptoms in his report dated 18 November 2020, and which were highlighted by Mr Rickard in his submissions, I am mindful of what was said by DP Roche in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
Given the significant injury that Mr Bryce has sustained to his lower back which has led to pain extending particularly down the left leg and the need for three major operations, the observations made by Dr Assaad of Mr Bryce having pain down the left leg and walking with a limp and that it may be related to favouring of the right leg, and the opinion which Prof Al Muderis ultimately reaches that it is clear that Mr Bryce’s right knee is now symptomatic because it is his favoured knee, I am satisfied that Mr Bryce has developed restrictions and symptoms in the right knee as a result of the injury to his lumbar spine.
I am satisfied from that evidence that there is an unbroken “causal chain” (Kirby P in Kooragang) of Mr Bryce experiencing several years of pain going down his left leg, the placing of additional pressure upon the right leg due to this pain, and the onset of symptoms in the right knee. This is supported by the opinion of Prof Al Muderis, and I have already provided reasons as to why I accept that opinion.
That “causal chain” is also supported by the opinion of Dr Lee. Mr Rickard is critical of the opinion of Dr Lee because Dr Lee does not address whether the varus deformity of the right knee contributes to Mr Bryce’s symptoms in that knee. However, that issue is considered and addressed by Prof Al Muderis, who opines that but for the work injury, Mr Bryce might not have become symptomatic from the varus malalignment.
Mr Rickard also refers to Prof Al Muderis recording a six month history of right knee pain when he sees Mr Bryce in July 2020 and that this is not consistent with Mr Bryce’s evidence of problems dating back to 2015 and 2016. Mr Rickard also observes that there is no reference to right knee problems in the clinical notes from Mr Bryce’s previous general practitioner, Dr Lagaida, which have been provided up to October 2019.
However, Mr Bryce does not state that he was having symptoms in his right knee in 2015 and 2016, only that he began to favour his right leg to take the weight of his left leg. The evidence from Mr Bryce and the medical records from Dr Assaad and Prof Al Muderis are consistent with an onset of right knee symptoms by the end of 2019 and early part of 2020, which coincides with an increase of lower back pain and pain radiating down the left leg and yet further pressure and strain being imposed upon the right leg.
The opinion of Dr Powell does not displace the weight of evidence that I have accepted which establishes that Mr Bryce has sustained a consequential condition affecting his right knee.
Dr Powell considers that a moderate varus alignment is likely to be a contributing factor to Mr Bryce’s right knee symptoms. However, a condition can have multiple causes (see ACQ v Cook [2009] HCA 28 at [25] and [27]) and Dr Powell does not consider whether significant pain going down the left leg for several years which has led to an altered gait could have caused symptoms in the right knee. Instead, Dr Powell merely states that “I do not believe that it can be conclusively demonstrated that this pathology is the result of his altered gait pattern.”
The test imposed in Moon as it applies to this dispute is whether Mr Bryce has symptoms in the right knee which result from the injury to the lumbar spine, and in my view that is not properly addressed in the opinion provided by Dr Powell.
There will therefore be a finding that the applicant has a consequential condition affecting his right knee as a result of the injury he sustained to his lumbar spine on 4 August 2014.
Whether the need for surgery to the right knee results from the injury sustained on 4 August 2014
Even though there is a finding that Mr Bryce has developed a consequential condition affecting his right knee as a result of the injury he sustained to his lumbar spine on 4 August 2014, it is still necessary for Mr Bryce to establish that the need for the surgery proposed by Prof Al Muderis results from the work injury.
The guiding authority on this issue is what was said by DP Roche in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) at [57]-[58]:
“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).”
Prof Al Muderis states that the need for the proposed surgery is to address the meniscal pathology which is Mr Bryce’s main cause of pain. He writes that it is the “mechanical issue” of the flipped medial meniscal tear which is likely the cause of symptoms. Prof Al Muderis also concedes that he cannot substantiate the exact cause of that pathology.
However, it is also the opinion of Prof Al Muderis, and one which I have already accepted, that Mr Bryce’s symptoms in the right knee are “because it is his favoured knee.”
I am satisfied that the work injury of 4 August 2014 materially contributes to the need for surgery to the right knee because notwithstanding the opinion of Prof Al Muderis that the meniscal tear is a cause of right knee symptoms and he is not able to identify the exact cause of that pathology, Prof Al Muderis also opines that the effects of the injury to the lumbar spine has also been a cause of symptoms in the right knee because Mr Bryce has been favouring the right leg. The surgery now proposed by Prof Al Muderis is an attempt to alleviate those symptoms.
Whether the surgery to the right knee proposed by Prof Al Muderis is reasonably necessary
Mr Rickard conceded that the actual surgery proposed by Prof Al Muderis was reasonably necessary. There is no medical opinion which challenges this.
There will therefore be an order that State Transit Authority is to pay the costs of a right knee arthroscopy and meniscal debridement/repair for a flipped medial meniscal tear proposed by Prof Al Muderis.
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