Burgess v State of New South Wales (Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Burgess v State of New South Wales (Western Sydney Local Health District) [2023] NSWPIC 632
APPLICANT:	Debra Burgess
RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	24 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for closed period of weekly benefits and medical expenses, including costs of right total hip replacement surgery; applicant suffered from osteoarthritis, and claimed aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to section 4(b)(ii); respondent disputed that the applicant had sustained injury; that she had been incapacitated for work; and the claim for medical expenses; respondent did not dispute that the surgery was reasonably necessary medical treatment, but disputed that the necessity for surgery resulted from injury; consideration of Federal Broom Co Pty Ltd v Semlitch, Murphy v Allity Management Services Pty Ltd, Fairfield City Council v Comlekci, Austin v Director General of Education, Cant v Catholic Schools Office, Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond, Rural Press Limited v Hancock, AV v AW, and Wollongong Nursing Home Pty Ltd v Dewar; Held – applicant sustained injury as a result of aggravation, acceleration, exacerbation or deterioration of disease, to which employment was the main contributing factor; applicant had no capacity for work during period for which weekly benefits claimed; surgery was reasonably necessary as result of injury; award for applicant of weekly benefits and medical expenses, including cost of surgery.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant for weekly benefits as follows: (a) from 20 October 2020 to 19 January 2021, pursuant to s 36 of the Workers Compensation Act 1987, at the rate of $666.89 per week; (b) from 20 January 2021 to 31 March 2021, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $561.60 per week and (c) from 1 April 2021 to 30 July 2021, pursuant to s 37 of the Workers Compensation Act 1987, at the rate of $577.77 per week. 2. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987, including the costs of and incidental to right total hip replacement surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Debra Burgess (Ms Burgess), is employed by the respondent, State of New South Wales (Western Sydney Local Health District) as a cleaner and tray maid. She commenced employment on 9 May 2009.
Ms Burgess claims to have sustained injury to her right hip, deemed to have happened on 3 April 2019, as a result of the aggravation, acceleration, exacerbation, or deterioration of a disease, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant completed a Worker’s Injury Claim Form (the claim form), which is undated, in December 2019. The date of injury was claimed to be 3 April 2019.
The claim form stated that the injury occurred while the applicant was pushing a food trolley when she felt shooting pain down the right side of her (right) hip. She had delayed reporting the injury as she had not realised that the pain would increase over time.
On 26 February 2020, the respondent’s insurer, Employers Mutual Limited (EML) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant had sustained injury (including “disease” injury); that employment was a substantial contributing factor to injury; that employment was the main contributing factor to the contraction, or aggravation, acceleration, exacerbation or deterioration of a disease; that she had any incapacity for work as result of injury; and that medical treatment was reasonably necessary as a result of injury.
By letter dated 21 February 2023, the applicant’s solicitors requested on her behalf that the insurer review its decision to dispute liability.
On 8 March 2023, QBE Insurance (Australia) Ltd (QBE), which had assumed management of the respondent’s claims, issued the applicant with a notice pursuant to s 287A of the 1998 Act. The decision to dispute liability was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 2 August 2023.
The applicant claimed to have sustained injury on 3 April 2019. She was manoeuvring a large metal trolley, used to deliver meals, and had to pull backwards to stop the trolley. In doing so, she braced her leg and felt pain in her right hip.
The applicant claimed weekly benefits compensation from 1 September 2020 to 2 August 2021, pursuant to ss 36 and 37 of the 1987 Act. She also claimed, pursuant to s 60 of the 1987 Act, the sum of $13,362.55 for past medical treatment, which included the cost of right total hip replacement (THR) surgery.
The respondent lodged its Reply as an attachment to an Application to Admit Late Documents dated 24 August 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant has sustained injury arising out of or in the course of her employment with the respondent;
(b)    whether employment was a substantial contributing factor to the injury;
(c)    whether employment was the main contributing factor to the injury;
(d)    whether the applicant is entitled to weekly benefits, and
(e)    whether the applicant is entitled to payment of medical expenses, including the cost of surgery. The respondent did not dispute that the surgery was reasonably necessary but disputed that it was reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for preliminary conference on 31 August 2023. Mr Gauci appeared for the applicant, who was present. Mr Marhaba appeared for the respondent. Ms Farrell and Mr Mott of QBE also attended.
The Application was amended to plead that the applicant had sustained injury deemed to have happened on 3 April 2019, as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to s 4(b)(ii) of the 1987 Act.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $701.99 per week.
The matter was listed for conciliation/arbitration hearing, by the Teams platform, on 29 September 2023. Mr McEnaney of counsel, instructed by Mr Manokarathas, appeared for the applicant, who was present. Mr Carney of counsel, instructed by Mr Gilmore, appeared for the respondent. Ms Farrell was present during conciliation and excused from attendance at the hearing.
The applicant sought a general order for medical expenses, pursuant to s 60 of the 1987 Act.
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.
At the conclusion of the hearing, I was advised that the applicant had served on the respondent a Notice for Production, with which it had not complied.
The applicant advised that she sought production of documents only from 1 August 2020, as her claim for weekly benefits commenced on 1 September 2020.
The respondent confirmed that it was able to provide the documents by 10 October 2023.
The applicant was directed to lodge and serve a wages schedule on or before 17 October 2023; and the respondent on or before 24 October 2023, should it disagree with the applicant’s schedule.
Both parties complied with the direction.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, and considered in making this determination:
(a)    Application and attached documents;
(b)    Application to Admit Late Documents dated 24 August 2023 and attached documents (Reply) filed by the respondent;
(c)    applicant’s wages schedule, dated 17 October 2023, and
(d)    respondent’s wages schedule dated 24 October 2023.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Debra Burgess

Ms Burgess’s first statement is undated.
She had been employed by the respondent at the Coolah Hospital for about 14 or 15 years as a cleaner and tray maid. In addition to general cleaning duties, her role involved delivering food and beverages.
She suffered an injury on 3 April 2019. She was pulling a large trolley that was used to carry meals to patients. The trolleys were very large, and difficult to stop and start. She could not see over the trolley.
The large trolleys were bought in November 2018, when a new hospital was built, with a $15 million extension, being a new aged care section. Her duties changed, and covered a large area, with a more extensive meal service, requiring a larger trolley.
She pulled to stop the trolley at a room where she was to deliver a meal. When she pulled on it to stop its momentum, she braced her leg and felt immediate shooting pain down the right side of her hip.
She consulted her general practitioner (GP), Dr Nylie-Le Martin, the next day. Dr Martin advised her to stop manipulating the trolley.
She continued to work her normal hours but did not do the tray maid duties with the trolley. The pain in her hip continued to progress and get worse. Pain also shot down her leg into her right knee and shin.
She initially had physiotherapy and took painkillers. The pain did not diminish, and she was referred to Dr Matthew Lyons, orthopaedic surgeon.
She saw Dr Lyons on 6 January 2020, and he recommended that she have a hip replacement.
EML had declined to pay for the surgery or any other medical expenses, or weekly compensation, as it stated her injury was not received in the course of employment, and rather related to osteoarthritis.
She had a history of arthritis since she was in her 30s. However, it had always been a condition that moved around the body. Sometimes it was in her toes and fingers, and then moved into her back. She had never experienced any significant hip pain before 3 April 2019.
Due to her hip injury, she had to cease work in about September 2020, and she was currently on six months unpaid sick leave. She had been certified unfit for work by Dr Martin.
She had applied for Centrelink benefits but had been informed she had to utilise her savings before she could be paid any benefits.
Ms Burgess made a further statement dated 15 December 2022.
She was diagnosed with osteoarthritis in about 1992, and suffered from joint pain, particularly affecting her finger joints.
She had been shown Dr Martin’s clinical note dated 4 April 2018. She now recalled consulting Dr Martin regarding hip pain she was experiencing at the time.
The pain she was experiencing at that time was limited to the outside of her right hip, with some radiation into her knee, and only mild in nature. It tended to come and go and did not restrict her from performing any of her work duties. Nor did it seriously limit her life.
She had an X-ray that showed some osteoarthritic changes at the hip.
Following the injury on 3 April 2019, the pain in her hip changed in nature significantly. The new pain was much more severe and shot down further into her leg. She also noticed a sensation of her hip “giving way” when she walked, that was not present previously.
She started to experience significant difficulty with tasks of daily living, such as putting on her socks and getting into or out of a chair.
Her symptoms made it impossible for her to undertake work duties, and she was off work for a period. She took unpaid leave for the majority of that time.
She had some treatment for her pain, including medicinal marijuana and physiotherapy, but nothing improved the pain significantly.
Following the hip replacement surgery, her pain symptoms had improved significantly, and she had been able to return to work on a permanent part-time basis as before the injury. She had some issues with extended standing, as her left leg was 2cm shorter than her right as a result of the surgery.
The new trolleys completely changed the system of work, which required her to manipulate a much bigger and heavier trolley. The nature of the trolley made it very difficult to stop its momentum when moving. It required significant strain on her hips and lower body as she struggled to stop it and when pulling to get it moving again. She did this pushing and pulling manoeuvre frequently throughout her shift.

Medical evidence

Coolah GP

On 14 July 2015, Dr Abbas Haghshenas recorded left hip pain, radiating to the knee and shin sometimes. There was no stiffness, and no tenderness on examination. There is a notation “discopathy Lumbar spine”. The plan was for weight loss and back exercise. This suggests that the doctor believed the applicant’s symptoms were related to her back.
On 4 April 2018, Dr Martin recorded “right hip pain – nil radiation to groin or back, is radiating to knee. For plain X-ray.” X-Ray of the right hip was requested.
On 30 October 2018, Dr Christopher Iredia recorded that the applicant was “known with rheumatoid arthritis”. She was on prednisolone and Naprosyn. The diagnosis was recorded as rheumatoid arthritis.
On 3 April 2019, Dr Martin recorded hip pain and shoulder pain.
Dr Martin noted that “Both these pains have started since doing tray at work with the new trolley. Trolley is heavy and hard to get going and hard to stop. Pt (patient) concerned she will get injured. Advised to d.w (assumed to mean ‘discuss with’) work. I will write letter of support”.
Dr Martin did write a letter on 3 April 2019 to the Management Team, Coolah MPS.
Dr Martin wrote that a safety issue had come to her attention, regarding the current tray trolley. She had witnessed staff having trouble stopping this trolley, resulting in it running into a soap dispenser on the wall.
Dr Martin was also aware of staff experiencing joint pain to hips and shoulders that could be attributed to the pushing and pulling required when moving this trolley.
Dr Martin was unaware of how much the trolley weighed, loaded or unloaded. She hoped the management team would consider doing a risk assessment on the trolley to prevent staff injuries.
On 9 September 2019, Dr Martin recorded “rheumatoid arthritis”. The applicant complained of joint pain due to R/A (rheumatoid arthritis). She had a very active job cleaning “MPS long hours on feet, trouble sleeping at night due to pain.”
Dr Martin again recorded rheumatoid arthritis on 4 November 2019. The history was “++pain R. Giving way. Radiating from hip to groin to shin.? if weight of trolley at work is making it worse. R knee swollen.”
On 26 November 2019, Dr Nutan Rayamajhi recorded that the applicant had ongoing right hip pain. She was due to get a hip replacement. She had shooting pain radiating to the ankle at night. She needed to walk around. The diagnosis was osteoarthritis of the hip.
On 4 December 2019, Dr Martin recorded that CT on 4 November 2019 showed severe OA (osteoarthritis) in the right hip, with a sprain to the greater trochanter. The applicant required ortho[paedic] review.
On 12 December 2019, Dr Martin recorded “worker’s compensation paperwork”.
On 12 February 2020, Dr Martin recorded CT and ultrasound. “Letter for work 2 on 2 off. Has been rostered on 6 in a row. Work certificate for 8^th to 12^th.”
On 5 March 2020, Dr Martin recorded “Paperwork for right hip.”
On 13 May 2020, Dr Martin recorded that the applicant had ongoing pain in her hip. She was on the waiting list for surgery.
On 26 May 2020, the applicant presented with a sore hip, “awaiting surgery”. The diagnosis was osteoarthritis – hip.
On 28 July 2020, Dr Martin recorded that the applicant had hip pain. She was on the waiting list for THR with Dr Lyons. He was following up with workers compensation.
On 17 August 2020, the applicant presented with hip pain. “S/Es and opiate use and tolerance and addiction explained”. She was advised to follow up the orthopaedic appointment.
On 15 September 2020, Dr Martin recorded chronic pain.
On 7 October 2020, Dr Martin recorded hip pain and medication review.
On 3 November 2020, Dr Martin recorded that the applicant was “back to see ortho re: hip – no longer able to work – for rpt X-ray”. She had chronic pain. Targin, Panadeine Forte and Endep were effective, “not taking LGP”.
Dr Martin wrote a referral to Dr Lyons. The reason for referral was “severe right hip OA. On waiting list for THR”.
The applicant had increasing disability and was using a walking stick and opiate analgesia. Dr Lyons was asked to consider reprioritising the waiting list criteria.
Dr Martin advised that a claim had been submitted for the issues, but denied. She asked whether Dr Lyons agreed that the injury was not the result of the applicant’s employment.
The applicant was referred to Dr Lyons and for X-ray of her right hip and pelvis “OA right hip query progression.”
On 8 December 2020, Dr Martin recorded that the applicant was requiring pain relief at night. She was awaiting surgical intervention and was on the public waiting list. Dr Martin discussed with her the risks of opioid addiction.
On 11 January 2021, Dr Martin recorded that the applicant had an appointment set up to reconsider her worker’s compensation claim.

Dr Frank Machart – orthopaedic surgeon

Dr Machart was qualified by the respondent and reported first on 13 February 2020.
Dr Machart recorded a history that the applicant’s weekend work was that of a “train maid”, using a meal trolley. After November 2018, the duties changed with a larger area, new premises, and a larger trolley that was difficult to stop and start. She could not see over it.
The applicant suffered an injury on 3 April 2019. She pulled to stop the trolley and experienced a sudden onset of pain in her right hip. She sought medical attention the next day and was advised to stop manoeuvring the trolley.
The applicant underwent what she called a risk assessment. She continued the domestic duties without the train maid duties, with similar hours. That was what she was doing at the time Dr Machart examined her.
The applicant’s treatment had been conservative. The severity of the pain had not diminished. She had been referred to Dr Lyons but had not yet seen him.
The applicant had a history of rheumatoid arthritis for 20 years, affecting her wrists, ankles, and fingers. She was on Prednisone and Methotrexate but was non-tolerant of the latter. Dr Machart asked her about the GP’s notation on 16 April 2018 of osteoarthritis of the right hip. She had no recollection of the origin of this documentation, events, or pain in the right hip.
Dr Machart recorded complaints of pain in the right hip, radiating to the knee and shin, associated with numbness in a similar area. Right groin pain was evident when walking. She was unable to estimate her walking tolerance. Driving tolerance was half an hour.
The applicant did her housework but paid for lawn and wood service since the injury, apparently due to right hip pain.
The applicant’s treatment consisted of non-steroid anti-inflammatories and physiotherapy.
Dr Machart did not have available any X-rays but had the report of the CT of the applicant’s right hip on 15 November 2019.
Dr Machart diagnosed severe osteoarthritis in the right hip. This was a progressive disease that had prognostic features of gradual increase in the severity of the symptoms to the point where consideration could be given to hip replacement. The applicant had reached that point. The history was not unusual, in that increasing symptoms were evident for at least a couple of years.

Dr Machart opined that the injury on 3 April 2019 did not cause the arthritis. There was no structural injury associated with this event. The injury was a manifestation of osteoarthritis, minor soft tissue injury which had healed. Ongoing pain represented osteoarthritis and not the injury. Potential aggravation was short-lived, and could not be held responsible for the pain, which required assessment by an orthopaedic surgeon. Dr Machart suspected that hip replacement would be recommended.
Dr Machart found it “curious” that the CT scan mentioned “sprain greater trochanter”, as a CT scan does not have the capacity to diagnose sprains. A sprain is a soft tissue injury. A CT scan does not have the capacity to assess bony structures.
Dr Machart suspected this was a misprint, misleading the treating doctors. The diagnosis used was a transcription of the CT, rather than a holistic approach to diagnostic features, which should be based on history, physical examination, and confirmation using X-rays.
Dr Machart opined that soft tissue sprain of the greater trochanter is “a nonsense diagnosis”. The greater trochanter is a bony structure that cannot be sprained. The injury could not be identified as causing the current symptoms, which represented severe osteoarthritis. They would have been evident in the absence of injury, judging by the severity of the osteoarthritis.
Dr Machart had no objective evidence that there was contribution from the injury to the applicant’s complaints and restrictions. They related to the pre-existing condition. The applicant’s employment was a substantial contributing factor to the temporary strain, and not to the current condition or osteoarthritis.
Dr Machart opined that aggravation, acceleration or deterioration of a disease was not evident.
The applicant was partially incapacitated for work, avoiding potential painful activities, such as pushing trolleys. The partial incapacity related to the severe osteoarthritis, and not to the injury.
The applicant’s osteoarthritis would continue to be an issue, and increase in severity with time, which was consistent with what had happened in the past. She would benefit from a hip replacement.
Dr Machart provided a supplementary report on 18 April 2023. He had been provided with additional information, including Dr Lyons’ report dated 26 February 2020; the report of Dr Graeme Doig, independent medical examiner qualified by the applicant, dated 23 March 2023; the applicant’s first statement; and the GPs’ records.
Dr Machart noted that the applicant had right hip pain one year before the date of injury, diagnosed as osteoarthritis, without reference to work issues or injury.
The narrative of injury was a specific incident. “Single stop of trolley”. This was not the narrative of increased pain due to the nature and conditions of employment.
The applicant no longer did the trolley maid duties after the injury, and despite the change of work, reported that the severity of the right hip pain gradually increased. Dr Machart opined that this was consistent with the prognosis of osteoarthritis. Soft tissue pain was expected to diminish.
Dr Machart noted that the narrative of injury in Dr Doig’s assessment was not entirely in keeping with the medical documentation or the narrative given to him, indicating features of the work that Dr Doig assessed may have contributed to the manifestation of osteoarthritis.
Dr Machart opined that this was a hypothetical, and did not follow medical evidence, other than a narrative of injury given to Dr Doig that was different to that given to the GP.
The documentation indicated that the applicant had had a hip replacement on 19 May 2021.
Dr Machart’s diagnosis was right hip osteoarthritis. It was more likely than not related to rheumatoid arthritis or was constitutional. The pathology was evident at the time of diagnosis in 2018, and more substantial at the time of manifestation of osteoarthritis caused by the incident at work on 3 April 2019.
Dr Machart opined that the mechanism of injury on 3 April 2019 was indicative of manifestation of osteoarthritis, rather than causation or aggravation. There was no compelling evidence to suggest that the gradual increase in severity of symptoms, to the point of needing hip replacement three [sic] years later, was caused by this injury. That history was consistent with the natural history of osteoarthritis, diagnosed as severe in 2019, and “not surprisingly” treated by hip replacement three years later.
In the absence of structural or substantial injury on 3 April 2019, Dr Machart did not have information that caused him to conclude that this incident alone had altered the natural history of the applicant’s osteoarthritis to the point of needing a hip replacement earlier than would have been necessary in the absence of “the injury”.
Dr Machart confirmed that osteoarthritis is a disease of gradual process. There was “no evidence supporting [the] scenario” that the applicant contracted, or suffered an aggravation, acceleration, exacerbation, or deterioration of a pre-existing right hip injury arising out of or in the course of her employment on 3 April 2019.
As to whether employment was the main contributing factor to the contraction, or aggravation, acceleration, exacerbation, or deterioration of the disease, Dr Machart responded that he had not diagnosed aggravation, acceleration, exacerbation, or deterioration as a result of the injury. He had diagnosed manifestation of osteoarthritis through the minor soft tissue injury that had resolved. Subsequent gradual deterioration, in the absence of aggravating factors at work, could not be attributed to the incident on 3 April 2019.
Dr Machart did not find evidence that THR on 19 May 2021 was conducted as a result of the work injury.

Dr Matthew (Matt) Lyons – orthopaedic surgeon

Dr Lyons reported to Dr Martin on 26 February 2020.
Dr Lyons recorded a history that the applicant aggravated her right hip in April 2019, when pushing a heavy metal trolley. She recalled there was upward of 50 meals on the trolley, which took some time to get moving. As the inertia took it forward, she then had difficulty making it stop. She had been constantly rotating on her right hip to prevent it from crashing into other objects.
The applicant subsequently had precipitous right groin pain that propagated down to the knee. There was also an element of trochanteric bursitis. She felt her hip had been giving way when walking.
Dr Lyons noted classic osteoarthritis features, with difficulty on any form of rotation, such as putting on shoes and socks, getting out of a chair and car, and sleeping. The applicant had been taking Panadol Osteo and Ibuprofen regularly. She had trialled medical marijuana, with symptomatic relief, particularly at night. She had not had intra-articular injections or surgery.
The applicant told Dr Lyons she had not had any issues with her hip until April 2019. She had incidentally spent a week in Dubbo Base Hospital for lethargy and anorexia of unknown cause. Her analgesics and anti-inflammatories had been ceased.
Dr Lyons reviewed the applicant’s CT scan of 10 February 2020. It confirmed advanced arthritic changes of the right hip, with a loss of joint space and quite extensive osteophytes, particularly of the head/neck junction anterosuperiorly. There was a large acetabular geode.
Dr Lyons discussed with the applicant the pathology and treatment options. When those modalities failed, the only predictable, durable, and effective surgical intervention would be a THR.
Dr Lyons opined that the applicant’s work did not cause the arthritic process. However, the work-related injury rendered it symptomatic, such that she required a THR sooner than would otherwise be the case.

Dr Graeme Doig – general orthopaedic and trauma surgeon

Dr Doig reported first on 23 March 2021.
Dr Doig recorded a history that the applicant injured her right hip on 3 April 2019 while pulling the heavy meal trolley. She had performed this task on a repetitive, daily basis for 15 years. The trolley was pulled on a solid floor that was not carpeted. It was in the process of repetitively, abruptly stopping the trolley that she believed she sustained constant jarring through the hip joint.
The applicant noticed lateral discomfort at the right hip in April 2018, and consulted her GP. Dr Doig believed an X-ray may have been performed, but did not have access to the results. This needed clarification with the GP. Ms Burgess maintained that she suffered lateral pain at the hip at that time, which fully settled. There was no acute injury of note.
Dr Doig referred to the X-ray report of November 2020, in which the radiologist mentioned that the applicant’s arthritis had progressed over a two year period, which would suggest that an X-ray was undertaken in 2018.
Dr Doig recorded a history that the applicant was taken off the tray deliveries at work. Workplace Health and Safety was involved, and now two people looked after the meal trolley. Due to the deterioration of her hip pain, the applicant had not been employed since September 2019 [sic]. She had been on the waiting list to have the hip joint replaced within the public system since March 2020, and was expecting the surgery to be performed in May 2021.
Dr Doig opined that the applicant presented with classical symptoms of an arthritic right hip joint, with pain and stiffness. She was also experiencing discomfort in her left hip.
Dr Doig noted that the applicant was diagnosed with rheumatoid arthritis, apparently primarily affecting her fingers, in 1992. She continued on a low maintenance dose of Prednisone.
Dr Doig diagnosed primary, idiopathic osteoarthritis of the applicant’s right hip joint. The cause was unknown, and thought to be multifactorial in origin, in the absence of any acute trauma in the past, particularly fractures of the acetabulum or femoral head involving the joint.
Based on the applicant’s description of her duties, having to repetitively pull and abruptly stop a heavy meal trolley on a daily basis, Dr Doig opined this “certainly” would have put increased bio-mechanical stress through the degenerative joint, rendering the pathology symptomatic.
Dr Doig opined that the applicant’s injury appeared to be a symptomatic exacerbation of the pre-existing arthritic hip joint.
Dr Doig noted that there appeared to have been a previous problem with the applicant’s hip, which she maintained was on the lateral side only, and which may have been related to trochanteric bursitis and/or gluteal tendinopathy. This should be clarified with the GP. The description of the applicant’s daily duties could have been a significant contributing factor to any symptomatic exacerbation of the pre-existing pathology.
Dr Doig agreed with Dr Machart that there was no structural injury to the applicant’s right hip when the incident was reported on 3 April 2019. She developed worsening pain at the hip joint due to repetitively pulling and stopping the heavy meals trolley. This would have had the potential of rendering a previously asymptomatic, arthritic hip joint symptomatic, and repetitively pulling and abruptly stopping the trolley over 15 years may have aggravated the articular-cartilage damage.
Dr Doig opined that THR was an appropriate treatment option in managing advanced osteoarthritis of the hip joint. It was “reasonable and necessary” for the applicant’s pre-existing hip pathology that appeared to have been rendered symptomatic during the course of employment.
Dr Doig opined that the applicant was not fit for her pre-injury position. In view of her age, education and previous experience, and ongoing opiate use, she was not fit to return to any employment. Her ongoing incapacity was the direct result of the primary, idiopathic osteoarthritis of the hip joint, which appeared to have been rendered symptomatic by her working conditions.
The applicant had a less than 5kg lifting, pushing, and pulling restriction, with limited bending, twisting, and squatting through the right leg. She should avoid working at heights and on uneven ground, as well as repetitive stair and hill climbing and kneeling. She would require breaks from prolonged standing and walking and was unable to run. She should not have been driving, due to her opiate requirements.
The applicant’s prognosis was guarded without successful THR surgery. Assuming she underwent the surgery with no complications, the prognosis should be good to excellent, and “hopefully”, she would be fit for pre-injury duties.
Dr Doig provided a supplementary report dated 20 February 2023. He had been provided with the report of the X-ray of the applicant’s right hip joint on 5 April 2018, and noted its conclusion.
Dr Doig opined that the imaging confirmed pre-existing, primary, idiopathic osteoarthritis of the right hip joint, the cause of which was unknown, and thought to be multi-factorial in origin, in the absence of acute trauma in the past.
The physical demands of the applicant’s employment “would have potentially aggravated and most certainly symptomatically exacerbated a degenerative hip joint.” Dr Doig opined that employment did not appear to be a substantial contributing factor to the development of the pathology, in that the applicant was already symptomatic from the condition.
Dr Doig noted that osteoarthritis of the hip can present with buttock, groin, and lateral-sided hip pain. It was not uncommon for patients to suffer referred pain to the anterior thigh and as far as the knee. He had undertaken successful hip arthroplasty surgery in patients presenting only with knee pain.
Dr Doig opined that undertaking the activities outlined by Ms Burgess “would most certainly render the degenerative hip joint more symptomatic.”
Asked to comment on Dr Machart’s opinion, Dr Doig opined that, following the incident of 3 April 2019, the applicant’s hip pain and restrictions deteriorated quite rapidly. He therefore did not believe this was a soft-tissue injury to the hip, but a symptomatic exacerbation and probable aggravation of the arthritic pathology.

SUBMISSIONS

The submissions have been recorded and a transcript is available. I will therefore refer to them only briefly.

Applicant

The applicant referred to her evidence as to the nature of the work she was doing. She referred also to the letter written by Dr Martin to the respondent after her injury on 3 April 2019, which was “on all fours” with the clinical records.
The applicant submitted that her case was not that there was no arthritis in her hip prior to 3 April 2019. All the doctors agreed that she had an osteoarthritic hip. At the time of the injury, she was in her sixties, and it was not unexpected that there might be arthritic conditions in the large joints. Notwithstanding, there was the onset of a specific type of pain.
The applicant referred to her second statement. She submitted there was no evidence that in 2018 she was sent to a specialist to have hip surgery recommended. The fact that this occurred after the injury at work has probative value.
The applicant submitted that the injury happened in April 2019, but the period of incapacity claimed did not start until September 2020. There was a period of approximately 17 months when she was experiencing pain but continued to work. She kept working to the degree that she was able and recommended by her GP.
The applicant referred to Dr Lyons’ report. She submitted she was still working for the respondent. She was not pushing the trolley but was still on her feet. She told the surgeon she could barely put on shoes and socks or get in and out of the car.
The applicant submitted she had not intended to mislead Dr Lyons regarding her prior history, and I would accept that she simply forgot about the prior issue with her hip. She was seeking treatment. This was not an independent medical examination.
The applicant referred to Dr Lyons’ opinion that the work-related injury had rendered her condition symptomatic, such that she required a THR sooner than would otherwise be the case. She submitted this was the ultimate point of her case on the THR. It was going to happen eventually, but it had been brought forward by the injury. That made it a s 60 expense, was the causation I must consider, and of which I would be satisfied.
The applicant referred to Dr Doig’s opinion, in support of her claim for “s 4(b)(ii) aggravations”. She submitted Dr Machart seemed to suggest there must be a change in the pathology per se. She referred to the decision of Acting President Roche, as he then was, in State Transit Authority of New South Wales v El-Achi,[1] in which he cited the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch.[2]
[1] [2015] NSWWCCPD 71 at [106] (El-Achi).
[2] [1964] HCA 34; (1964) 110 CLR 626 (Federal Broom).
The applicant submitted that the evidence I needed was her evidence that she felt a distinct and severe worsening of her symptoms, which coincided with the date when she complained to her GP. That is consistent with what she described, which was a rapidly worsening condition. At that point, her hip started giving way. It had not given way before.
As regards the reasonable necessity of the surgery, the applicant referred to the decision in Murphy v Allity Management Services Pty Ltd.[3] She submitted I would be satisfied that the event at work had materially contributed to the need for surgery.
[3] [2015] NSWWCCPD 49.
The applicant submitted that it was not strictly necessary to address the application of s 9A of the 1987 Act. The aggravation was plainly established, and the only thing that was suggested about the event at work was pushing a trolley. There was no other contributing factor to be considered – “that is 9A.”
As regards the issue of capacity, the applicant referred to the decision in Fairfield City Council v Comlekci,[4] which addressed cases in which a party suggests that where there is a dearth of evidence on a point, the Commission may be unable to form a view.
[4] [2023] NSWPICPD 45 (Comlekci).
The applicant accepted that there were no certificates of capacity (COCs) during the claimed period of incapacity. She submitted the injury was disputed by the insurer on 26 February 2020, which was at about the time that Dr Lyons became involved. The COCs confirmed that she continued to work on suitable duties for as long as she could, up until September 2020.
The applicant submitted that I would accept that she was a hard worker, and notwithstanding that she was starting to rely on very heavy painkilling medications, she continued to work. She referred to her GPs’ records. Dr Martin recorded on 3 November 2020 that she was no longer able to work. She had been prescribed Targin, Panadeine Forte and Endone, with surgery in the “faraway distance”.
The applicant submitted there was evidence of incapacity. The GP was describing it, and she was stating it. The specialist suggested one possible solution to the pain was the use of a walking stick. They were not the treatments of someone who had capacity for work, and who demonstrated for 17 months a willingness to continue working, notwithstanding increasing pain. That was leaving aside the remarks about incapacity in the home.
The applicant submitted that she was a worker who had “literally reached the end of the road as far as capacity” and was simply unable to work. If there was any doubt about that, it should be dispelled by the fact that she had surgery in May 2021 and this claim commences [sic: ends] on 2 August 2021. She returned to work about seven or eight weeks after having her hip replaced and made no further claim for incapacity.
The applicant submitted that Comlekci was useful authority for the proposition that the fact that there were no COCs should not cause any disquiet as to whether there was evidence to decide whether she was fit to work, or partially or totally unfit, during the period when she said she had no capacity, and when she was increasing her use of serious opioid painkillers.

The applicant submitted that the evidence was quite clear that she had worked as hard as she could until she could not, and then she was totally unfit. She gave that evidence. There was nothing in the medical evidence to suggest otherwise, and the absence of COCs cannot be a reason for me not to decide that question.
The applicant submitted that if I found injury, it would follow that any reasonably necessary s 60 expenses would follow. The respondent had not disputed that the surgery was reasonably necessary, but causation was in dispute.
The applicant submitted that, as the PIAWE was not in dispute, I would make an award for the period from 1 September 2020 to the return to work on 2 August 2021, pursuant to ss 36 and 37 of the 1987 Act, on the basis of total incapacity.
In reply to the respondent, the applicant submitted that restraining the meal trolley was significant by reason of the fact that it caused the symptoms to come on. It need not be subjectively significant. It was significant because of the exacerbation it caused, and she had described that very plainly.
The applicant submitted that the respondent had acceded to the fact that the first reference to needing a hip replacement was in February 2020. She submitted that was much sooner than a couple of years on. Had she had access to private health insurance or the ability to step into a surgical room that day, she would have, but she went onto a public waiting list because the claim was declined.
The applicant submitted that this was an “aggravation” case. The symptoms became severe in April 2019 when the accident/injury happened. The nature of the pathology changed to the extent that she started to describe different types of pain, severe pain, and much greater restriction on her activities of daily living. She was referred to a specialist, who suggested not three years later, but less than 12 months later, that she needed a hip replacement.
The applicant submitted that Dr Machart suggested that the fact that surgery did not take place until May 2021 indicated some gradual process. This was not so, and not what he said in his earlier report. He had said, two weeks before Dr Lyons, in February 2020, that surgery was needed.
The applicant took issue with the respondent’s submission that the commencement of the claim should be in October 2020. The respondent had not responded to a Notice for Production. It was under a burden to give the applicant the material she needed to properly work out when leave was taken, when leave was unpaid, and essentially when wage loss occurred.
The respondent had failed to do that, and it was not proper for it to say that, because the only three payslips in evidence suggest that the claim started in October 2020, that was when it should start.
The applicant claimed from September 2020, which she said was when she went off work. That seemed to be consistent with the GPs’ records. The only party that had the material available to assist was the respondent. The applicant submitted that Comlekci also dealt with a respondent’s failure to produce records.
The applicant submitted that it would be appropriate to reject the respondent’s submission “wholesale”, grant compensation from the start of the period, and if I had any concerns to direct the respondent to comply with the Notice for Production.

Respondent

The respondent referred to the applicant’s evidence and submitted that it had been accepted by all the doctors that in and of itself, it was not the sort of injury that would cause an obviously significant injury in the hip. That was not the issue. The issue was the level of arthritis in the applicant’s hip, the aggravation, and the effect of that aggravation.
The respondent submitted that the applicant had more severe pain in April 2018 than on 3 April 2019. The clinical notes indicate “monitor”, so Dr Martin thought it needed to be kept under observation. The respondent submitted that, a year later a relatively innocuous accident caused a further aggravation. (I note here that the reference to “monitor” was a reference to an unrelated issue with the applicant’s mouth).
The respondent submitted that Dr Lyons was the only doctor who said that perhaps this aggravation had accelerated the applicant’s knee [sic]. That was not the evidence of Dr Doig and Dr Machart.
The respondent referred to Dr Doig’s report, submitting there was no history of past trauma. Dr Doig had put her condition down as a “nature and conditions type claim”. He said there appeared to be a symptomatic exacerbation of a pre-existing arthritic hip joint. What he did not say was that this aggravation had accelerated the need for surgery, which was significant.
The respondent submitted that Dr Doig had opined that it was not uncommon for patients to suffer referred pain to the anterior thigh, on the outside of the thigh, which was the exact pain Ms Burgess described in April 2018. This was significant, because if this evidence was accepted, the surgery may well have been necessary in April 2018. In any event, given the chance to say that the aggravation caused the need for the operation, he did not do so.
The respondent submitted there were factors that put weight on Dr Machart’s report. The fact was that there was a long wait between the incident on 3 April 2019 and the operation two years later. The applicant seemed to have worked until either 1 September 2020 or 18 October 2020.
The respondent submitted there were a number of medical certificates at around February 2020, and their effect was that the applicant could do alternate duties, or needed to stagger her duties, not to work two days in a row. This was easy because she was working part-time.
The respondent submitted that there was no further evidence from Dr Lyons or Dr Martin in relation to capacity and how it deteriorated from that time to when the applicant left work. She left work some eight months later. It appeared from her payslips that she was paid normal pay until 18 October 2020. The respondent submitted that that would be the time that she left work. We do not know what her condition was then. We know that some eight months before, she was certified fit for some sort of light work or alternate duties and had done those duties.
The respondent submitted that the only reference in the GPs’ notes to the applicant not being able to work was on 3 November 2020. There was a complaint to the doctor, who did not issue any certificates. She sent the applicant back to Dr Lyons, and nothing seemed to happen for some considerable period. The visits after that were for check-ups and scripts.
The respondent submitted that the GP did not give any reasons for the applicant not being able to work, and neither did Dr Lyons. The evidence I was left with on incapacity was that the applicant was able to do her job. She did stop. She said she was unable to do it, but none of her doctors gave any opinion as to whether that accorded with their examination or medical opinion. The respondent submitted that left a “hole” in the evidence.
The respondent submitted that the Commission is an expert tribunal, and the applicant would have been able to do some sort of lighter duties. It was not until she saw Dr Doig on 23 March 2021 that he said she was not fit for anything. There was a lacuna, with no evidence as to exact capacity or incapacity.
The respondent submitted that there was no question about incapacity in the end period, but there was a question about incapacity in the earlier period. It did not deny that Ms Burgess was very diligent and hardworking, and at the age of 65 is still working, but the Commission had nevertheless to act on the evidence. The evidence may not be perfect, but it could not infer a total incapacity when there was no evidence saying that. One would have to start with some sort of partial incapacity or some sort of assessment.
In relation to causation the respondent submitted that there was no question that this was a serious condition in the applicant’s hip, which needed replacement. The question was whether this relatively innocuous accident caused the need for the operation. Dr Lyons said “yes”, Dr Machart said “no”, and I could not really rely on Dr Doig to back up Dr Lyons. He was ambivalent at best.
The respondent submitted that Dr Doig and particularly Dr Machart, would be accepted, when he said this was just a natural progression. The period between the incident and the operation was too long for there to be a nexus between the minor aggravation and the need for the operation. It was more likely that it was the underlying condition that caused that need.

SUMMARY
Injury

Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’

(cf former s 6 (1))
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 claims to have sustained injury, deemed to have happened on 3 April 2019, as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to s 4(b)(ii) of the 1987 Act. For convenience, I will refer in these reasons to “aggravation.”
In Austin v Director General of Education,[5] Clarke JA, applying Federal Broom, said a judge, faced with the potential application of the “disease” provisions, should ask the following questions:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
(d)     If so, did a partial or total incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”
[5] (1994) 10 NSWCCR 373.
Section 4(b)(ii) of the 1987 Act now provides that the applicant must establish that employment was the main contributing factor to the aggravation of the disease.
There is no dispute that the applicant suffered from osteoarthritis in her right hip. Dr Lyons, and the independent medical examiners qualified by each party, are agreed that that was the case.
It is therefore then necessary to consider whether there was an aggravation of the disease.
In Federal Broom, Kitto J agreed with what Moffitt J had said in the Court of Appeal:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of the symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.” (Emphasis added).
Windeyer J said in Federal Broom:
“The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”
Burke CCJ applied Federal Broom in Cant v Catholic Schools Office,[6] where he said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (Emphasis added.)
[6] [2000] NSWWCC 37.
The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond,[7] applying Federal Broom and Cant.
[7] [2006] NSWWCCPD 132; (2006) 6 DDCR 79 (Raymond).
Acting Deputy President Moore referred to Raymond in Rural Press Limited v Hancock,[8] where she said, at [67]:
“The proper test then is whether the aggravation to which the employment was a contributing factor had some tangible effect on the worker. It is not necessary for the particular disease to be made worse…” (emphasis in original);
and at [74]:
“It is clear that symptoms or pain brought on by a work activity may constitute a relevant aggravation even though no pathological change in the underlying condition has occurred (Commonwealth of Australia v Beattie)[9]. What is necessary is to decide whether the manifestation of symptoms is sufficient to establish ‘injury’, or, in other words, whether the symptoms were made worse by the work duties described (Mellor v Australian Postal Corporation)[10]”.
[8] [2009] NSWWCCPD 160.
[9] [1981] FCA 88; (1981) 35 ALR 369.
[10] [2009] FCA 504.
The evidence in this matter establishes that the applicant had symptoms in her right hip in April 2018, and they were sufficient for her to report them to her GP, who referred her for
X-ray. She was not referred for any specialist opinion, and there is no further mention of symptoms in her right hip until after the injury on 3 April 2019.
I accept the applicant’s evidence about the nature of the symptoms and restrictions she experienced after the injury, compared to her situation in April 2018. It was only after the injury in April 2019 that she was referred for specialist opinion.
I am satisfied that the applicant sustained an aggravation of a disease on 3 April 2019. Her symptoms were increased or intensified. The disease was made worse, in that it was made more grave, more grievous, or more serious in its effects on her. It is not necessary that she establish some change in the pathology of her hip. As Burke CCJ said in Cant, there is a relevant aggravation if her symptoms have increased and become more serious.
It is next necessary to consider whether the applicant’s employment was the main contributing factor to the aggravation.
“Main contributing factor” was discussed in AV v AW [2020] NSWWCCPD 9 at [65]-[78].
Deputy President Snell discussed the previous authorities, including Flanagan v NSW PoliceForce;[11] El-Achi; Mannie v Bauer Media Pty Ltd;[12] and Lilyvale Hotel Pty Limited v Bradley.[13] He summarised the discussion as follows:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (At [77]-[78].)
[11] [2017] NSWWCCPD 33.
[12] [2016] NSWWCCPD 47.
[13] [2016] NSWWCCPD 62.
While the medical evidence relied on by the applicant does not specifically state that her employment was the main contributing factor to the aggravation, the evidence overall is sufficient to establish that it was. There are no identified contributing factors to the aggravation (which is all that the applicant need establish) other than the incident with the trolley on 3 April 2019.
As this is a “disease” injury, it is unnecessary that I consider the application of s 9A of the 1987 Act, which in any event is a less stringent test.
I am therefore satisfied that the applicant sustained injury to her right hip, arising out of or in the course of her employment, on 3 April 2019.

Incapacity

The applicant referred to the decision of President Judge Phillips in Comlekci.
His Honour said at [98]:
“In Moss,[14] referred to by the respondent, the Court of Appeal said:
‘The case, then, is not one of which it can be said that there was no evidence of any impairment of capacity to earn. Since there was some evidence of impaired earning capacity, it would have been wrong, on the authorities, for the trier of fact to conclude that damages to compensate for it should only be nil or nominal.’
And:
‘…where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.’”
[14] New South Wales v Moss [2000] NSWCA 133.
The respondent submitted that there was a “hole” in the evidence regarding the applicant’s capacity for work.
The applicant submitted that she had “reached the end of the road” as far as her capacity went, had worked as hard as she could, until she could not, and then was totally unfit.
The applicant’s evidence is that after the injury she noticed a sensation of her hip “giving way” when she walked. She continued to work, although she was not pushing the trolleys, but her condition nonetheless deteriorated to the point where she had difficulty even putting on her socks and getting into or out of a chair. Dr Lyons recorded a history that she had difficulty putting on her shoes and socks, getting out of a car, and sleeping. Among other treatments, she was using medicinal marijuana.
I have referred above to the GPs’ records.
Dr Martin recorded that the applicant’s job was very active, involved long hours on her feet. She noted complaints of “++pain” and giving way. The applicant was using opiates and tolerance and the danger of addiction were explained.
By 15 September 2020, Dr Martin had recorded chronic pain, and on 3 November 2020, the applicant was no longer able to work. She was taking opiates and using a walking stick. Dr Martin asked Dr Lyons to consider reprioritising her for surgery.
EML had disputed liability for the applicant’s claim in February 2020. It is therefore not, in my view, of consequence that her GP was not issuing her with COCs. There may have appeared to be little point in doing so.
The applicant gave evidence that, when she ceased work, she took unpaid leave. She was denied Centrelink benefits until she had exhausted her savings. In circumstances where she had no income, it appears to me that she would have continued to work, even on further reduced hours, if she could have done so.
As the applicant submitted, she returned to work about seven or eight weeks after the surgery and makes no claim for ongoing incapacity. I accept that she is a worker with a strong work ethic and that she worked until she could no longer do so.
As for whether the applicant had capacity for work in suitable employment in the period before she underwent the surgery, s 32A of the 1987 Act defines “suitable employment” as meaning work for which the worker is currently suited -
“(a) having regard to –
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document proposed as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of - -
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”

The respondent submitted that the applicant would have been able to do some form of lighter duties, without providing any assistance as to what those duties may have been.
The applicant at the date of the injury was 61 years old. She had been employed by the respondent for about 14 or 15 years, performing the same duties she was performing when she was injured.
The applicant has not given any evidence about other employment she may have had. However, Dr Doig recorded that she had previously worked in a supermarket, was self-employed in a take-away shop, and worked as a cook at a service station. Each of those was employment that I accept would have entailed her being on her feet for most or all of her working day.
I have discussed above the effects of the injury on the applicant. She was using a walking stick to mobilise. All the specialists who have provided evidence agree that she required a total hip replacement. It is difficult to envisage her performing other than a sedentary job, and there is no evidence that she has the education, skills and work experience to obtain such work.
As regards any return to work process or injury management plan, or the provision of rehabilitation services, there is no evidence of any such assistance to the applicant. I would add that the fact that the respondent had disputed liability for the claim did not relieve it of its obligations under Chapter 3 of the 1998 Act. Section 41A of the Act provides that the requirements of the Chapter apply even when there is a dispute as to liability.
In Wollongong Nursing Home Pty Ltd v Dewar,[15] Roche DP said at [58]:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’.” (Emphasis in original.)
[15] [2014] NSWWCCPD 55.
Taking into account the matters referred to in s 32A of the 1987 Act, and the evidence to which I have referred, I am satisfied that the applicant had no current work capacity during the period for which weekly benefits compensation is claimed. She obviously had no capacity for work following the surgery in May 2021.
The parties agreed on the applicant’s PIAWE, but each filed a wages schedule.
The applicant’s wages schedule covers the period from 20 October 2020 to 30 July 2021. It notes that the period claimed in the Application was from 1 September 2020 to 2 August 2021, but on review of the wage records, the period claimed is from 20 October 2020 to 30 July 2021.
The respondent’s wages schedule covers the period from the pay period ending 6 September 2020 to the pay period ending 25 July 2021, but notes that there was no
wage loss prior to the pay period ending 18 October 2020. That would accord with the applicant’s amended claim.
According to the respondent’s wages schedule, the applicant had earnings of $34.60 per week during the pay period ending 24 January 2021, and of $135.13 during the pay period ending 21 February 2021. The applicant’s wages schedule has not recorded any earnings during those periods. The evidence does not suggest that the applicant worked after October 2020, so I am unsure to what those payments relate.
The wage records are not before me. I have adopted the applicant’s wages schedule, which appears to be in keeping with the evidence.

Medical expenses

The applicant seeks a general order for medical expenses pursuant to s 60 of the 1987 Act; and an order for the cost of the right THR.
I am satisfied that the applicant’s right THR was reasonably necessary as a result of the injury.
Dr Lyons, the treating specialist, opined that the work-related injury rendered the applicant’s arthritic process symptomatic, thus requiring her to undergo a THR sooner than would otherwise have been the case.
The respondent was critical of Dr Doig’s evidence, submitting that he had attributed the applicant’s condition to the “nature and conditions” of employment.
However, Dr Doig opined that the incident on 3 April 2019 had the potential to render a previously asymptomatic (which had been the case for 12 months) arthritic hip joint symptomatic. The surgery was “reasonable and necessary” [sic] for the pre-existing hip pathology that appeared to have been rendered symptomatic during the course of employment.
In his supplementary report, Dr Doig clearly opined that the incident on 3 April 2019 caused a symptomatic exacerbation and probable aggravation of arthritic pathology.
As the applicant submitted, Dr Machart appeared to suggest that there must be a change in pathology to establish aggravation, so he did not accept there had been an aggravation. I do not accept that conclusion, which is not in accordance with the case law.
I have accepted that the applicant did sustain aggravation of a disease. She need only establish that the injury on 3 April 2019 materially contributed to the necessity for surgery, and I am satisfied that it did.
I do not accept the respondent’s submission that the period between the incident and the operation was too long for there to be a nexus between them.
Dr Machart opined as early as February 2020 that the applicant needed to consider THR, and he suspected it would be recommended. He was correct, Dr Lyons agreeing with him that same month.
Liability for the applicant’s claim was disputed in February 2020. That meant she was forced to join the public waiting list for the surgery. I have no doubt that she would have wished to have it sooner, given the severity of her symptoms.
Dr Rayamajhi recorded as early as November 2019 that Ms Burgess was due for a hip replacement. Dr Martin asked Dr Lyons to consider reprioritising the waiting list criteria. That she was not able to undergo the surgery until May 2021 is not in my view evidence that there was no nexus between the injury and the necessity for surgery. It is evidence that the applicant had to wait over two years for surgery that all the experts agreed she required.
The applicant is entitled to an award for the cost of the surgery and a general order for s 60 expenses.
I make the following determinations:
(a) The applicant sustained injury to her right hip, pursuant to s 4(b)(ii) of the 1987 Act, on 3 April 2019.
(b) As a result of the injury, the applicant had no capacity for work for the period from 20 October 2020 to 30 July 2021.
(c) There will be an award for the applicant of weekly benefits pursuant to ss 36 and 37 of the 1987 Act for the period from 20 October 2020 to 30 July 2021.
(d) There will be an award for the applicant pursuant to s 60 of the 1987 Act, including the costs of right THR on 19 May 2021.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 632

24 November 2023