Campbell v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Campbell v State of New South Wales (NSW Police Force) [2023] NSWPIC 636
APPLICANT:	David Campbell
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Brett Batchelor
DATE OF DECISION:	28 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the cost of total left replacement surgery pursuant to section 60; the respondent submitted that, while the surgery was reasonably necessary as a result of the condition in the applicant’s left hip, that was not a work-related condition but represented deterioration of a pre-existing degenerative condition in the hip; the respondent also claimed that the expert medical opinions on which the applicant relied should not be accepted as he had not established a ‘fair climate’ for the acceptance of those opinions; the doctors had not been supplied with the clinical notes of the applicant’s treating general practitioner; the applicant claimed that he had suffered a traumatic injury to the left hip in the day of injury which caused a tear of the anterior superior labrum which then accelerated the underlying arthritis, or alternatively, that the injury aggravated and accelerated the pre-existing asymptomatic degenerative condition in the left hip; detailed consideration of the medical evidence of the applicant’s treating doctor’s, the applicant’s independent medical examiner, and the respondent’s independent medical examiner; finding that the surgery carried out on the left hip was reasonably necessary as a result of the work injury, the occurrence of which had been accepted by the respondent; Held – the respondent ordered to pay for the costs of and incidental to the surgery; the respondent ordered to pay the applicant’s costs as agreed or assessed.
DETERMINATIONS MADE:	The Commission determines: 1. The sustained injury to his left hip on 4 December 2018 arising out of or in the course of his employment with the respondent. 2. The total left hip replacement surgery, recommended by Dr Glase in his report dated 31 March 2023 and performed on 8 August 2023, was reasonably necessary as a result of injury on 4 December 2018. 3. The respondent is to pay the costs of and incidental to that surgery pursuant to s 60 of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant’s costs as agreed or assessed.

STATEMENT OF REASONS

BACKGROUND

David Campbell (the applicant/Mr Campbell) seeks compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the cost of total left replacement surgery carried out by Dr Malcolm Glase, orthopaedic surgeon, on 8 August 2022.
The applicant joined the NSW Police Force (the respondent) in February 1988, and claims that he injured his left hip on 4 December 2018 whilst on duty and attending a training course at Castle Hill. He was involved in self defence training and, as instructed, struck the padded suited instructor with a ‘Police Long Baton’ on a number of occasions. He lost his footing and fell, landing heavily on his left hip/side.
The applicant completed the training and his shift, and later that day reported the injury to the Hornsby Police Station. Prior to this incident, Mr Campbell had not experienced any pain or discomfort in either hip, a matter which is conceded by the respondent.
Mr Campbell consulted his general practitioner, Dr Linda Harris, and underwent an X-ray of his pelvis and left hip on 22 February 2019 and MRI scan of his left hip on 25 February 2019. He was certificate unfit for duties for approximately five months due to the injury, and the treatment he was obliged to undergo including attendances on doctors and for physiotherapy.
The applicant claims that in around November 2022 he purchased a manual motor vehicle and began to notice pain in his left hip to change gears. As a result, he sold that vehicle and purchased an automatic vehicle.
The applicant claims that in about January 2023 the pain in his left hip was gradually increasing in severity, and he consulted Dr Harris. Medication was prescribed, and a referral to Dr Glase, orthopaedic surgeon, was issued. Mr Campbell worked his last active shift with the respondent on 10 February 2023. An X-ray of the left hip was performed on 15 February 2023.
Dr Glase saw the applicant on 31 March 2023 and produced a report of that date addressed to Dr Harris.[1] Dr Glase recommended a total left hip replacement.
[1] Application to Resolve a Dispute (ARD), noting that page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
A request for payment of the cost of that surgery was made to the respondent’s insurer, Employers Mutual Limited – as agent for the NSW Self Insurance Corporation (EML).
The applicant was independently medically examined by Associate Professor Paul Miniter, orthopaedic surgeon, (Dr Miniter) on 4 May 2023. Dr Miniter produced a report dated 11 May 2023 in which he expressed the opinion that while the surgery proposed by Dr Glase was reasonably necessary as a result of the applicant’s condition, it was not due to a work-related condition.[2] The doctor was on the opinion that Mr Campbell was suffering from pre-existing osteoarthritic disease in both hips, clearly seen on X-rays, and that the surgery proposed would have been required had the applicant been at work or otherwise. Dr Miniter did give a positive prognosis for what he described as routine total hip replacement surgery, a rapid return to work and complete resolution of symptoms.
[2] ARD p 28, Reply p 14.
On16 May 2023 EML issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the applicant’s current condition, and for weekly compensation and medical and/or related expenses.[3] That notice contained reference to the consultation report of Dr Glase dated 31March 2023 in which the doctor said that the applicant would benefit from anterior minimally invasive total hip replacement.
[3] ARD p 7.
Mr Campbell independently medically examined by Professor Ghabrial, orthopaedic surgeon (Dr Ghabrial) on 16 June 2023, who produced a report of that date.[4] Dr Ghabrial expressed the belief that the procedure suggested by Dr Glase was reasonable and necessary (emphasis added) as a result of the injury of 2018. In other words he said, if the applicant had not had the injury in December 2018 he would not currently be facing surgery.
[4] ARD p 33.
On 22 June 2023 the applicant’s solicitor made a request to EML for review of the s 78 notice dated 16 May 2023, pursuant to s 287A of the 1998 Act.[5] Included with that request were the reports of Dr Glase dated 31 March 2023 and Dr Ghabrial dated 16 June 2023.
[5] ARD p 15.
On 6 July 2023 EML issued to the applicant a review notice under s 287A of the 1998 Act maintaining the decision in the s 78 notice dated 16 May 2023.
The applicant underwent the surgery on 4 August 2023, and now claims the costs of and incidental thereto.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the total left hip replacement surgery undergone by the applicant on 8 August 2022 was reasonably necessary as a result of injury to the left hip on 4 December 2018.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a conciliation/arbitration hearing via video conference on 24 October 2023. Mr Hammond of counsel appeared for the applicant briefed by Mr Foulcher. The applicant attended separately. Mr Young of counsel appeared for the respondent briefed by Ms Cant. A representative of EML also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. In summary, they are as follows. By agreement, the respondent proceeded first with its submissions.

Respondent

The respondent refers to [12]-[15] of the applicant’s statement dated 3 August 2023,[6] noting that there was three or four month delay between the incident in which the applicant had been involved on 4 December 2018 and when he consulted his general practitioner, Dr Linda Harris. The X-ray and MRI scan referred to in [15] were not carried out until 22 and 25 February 2019.
[6] ARD p 2.
The respondent submits that the heart of the applicant’s case is what happened to Mr Campbell’s right hip on 4 December 2018. Was it a tear of the superior anterior labrum, as diagnosed by Dr Ghabrial, or was that tear pre-existing as diagnosed by Dr Miniter? If it was pre-existing, how traumatic was the 4 December 2018 incident? With reference to the file review report of Dr Miniter dated 22 August 2023,[7] the respondent submits that if there had been a serious injury on 4 December 2018, there would have been bone bruising shown or soft tissue swelling. In the absence of these, it was only a soft tissue injury.
[7] Reply p 19.
The respondent submits that there is absent from the reports of the doctors on whom the applicant relies to discharge the onus of proof on him material that would establish a ‘fair climate’ for the acceptance of the opinions of those doctors.
In respect of the applicant’s statement that in or around November 2022 he had to sell his manual transmission motor vehicle because of increasing problems with his left hip, there is nothing in the clinical records to corroborate this complaint.
The respondent submits that the applicant has failed to explain at [18] of his statement dated 3 August 2023 how or why the pain in his left hip was gradually getting more severe, relative to the event on December 2018.
The respondent submits that the opinion of the treating surgeon, Dr Glase, is of limited value as that doctor becomes involved in the applicant’s care well after the event of December 2018. Further, there is a large gap in the applicant’s evidence as to what happened to him in the period from December 2018 to January/February 2023 when he says that his symptoms worsened.
The respondent submits that the evidence from the applicant’s partner Sue Drummond, in her statement dated 12 September 2023,[8] does not assist the applicant in respect of what was happening to him in the intervening period between December 2018 and January/February 2023.
[8] ARD p 6.
The respondent submits that the report of Dr Glase to Dr Linda Harris dated 31 March 2023 does not assist the applicant in terms of what was happening to him in the period between injury and when he consulted Dr Glase. There is no explanation in the report for the apparent steady progression in the symptoms up until early 2023.
The respondent notes that while Dr Miniter is of the opinion that the total left hip replacement surgery is reasonably necessary to address the condition in the left hip, he could find no association between the alleged fall in the workplace and the current situation in which the applicant finds himself. Mr Campbell simply has a predisposition to osteoarthritic disease. The diagnosis of Dr Miniter is not one of injury.
The respondent addresses the opinion of Dr Ghabrial in his report dated 16 June 2023, noting the result of the MRI scan dated 25 February 2019 on which Dr Ghabrial bases his opinion that the applicant suffered a tear of the labrum in the work incident of 4 December 2019. The respondent submits that ‘judicial notice’ can be taken of the fact the presences of osteophyte revealed in the scan is indicative of a condition developing over time, and not any traumatic incident.
The respondent submits that Dr Ghabrial offers a scant description only of the increasing symptoms in the left hip region. He does not offer any opinion as to the point at which recovery from the injury may occur. What is missing from Dr Ghabrial’s report, according to the respondent, is a thorough review and explanation of what happened to the applicant over the period from December 2018 to February 2023.
The respondent refers to the report of Dr Harris dated 23 June 2023, noting that there is no reference therein to what happened to the applicant in the years between the incident of 4 December 2018 and the date of the report. According to that report, the applicant first became the patient of the doctor on 17 December 2001. The respondent notes Dr Harris gives a qualified opinion that the incident of 4 December could have aggravated underlying changes in the left hip. The respondent submits that for the applicant to succeed in his case, the medical evidence must say that the incident accelerated the underlying changes in the left hip, not simply aggravated them.
The respondent notes that Dr Miniter, when preparing his supplementary (file review) report dated 22 August 2023, had access to the clinical records of The Mosman Practice in which Dr Harris works. In this report, Dr Miniter expresses puzzlement that Dr Ghabrial believes that there has been aggravation of the applicant’s condition caused by the workplace. The respondent notes that the applicant has had this report since before the telephone [sic, preliminary] conference in the current proceedings, and has not lodged any further opinion from Dr Ghabrial addressing what Dr Miniter says. In making this submission, the respondent does not suggest that there is a missing report from Dr Ghabrial.
The respondent submits that the contemporaneous records of Dr Harris should have been considered by Dr Ghabrial. The assumptions made by the doctors relied upon by the applicant to support his case undermine the weight that the reports should be given. There is no ‘fair climate’ established for the acceptance of the opinions in those reports.
The respondent refers the clinical notes of the applicant produced by The Mosman Practice,[9] and notes the following:
[9] From p 22 Reply.
(a)    on 19 November 2018 in a “Non visit” entry is recorded by Dr Harris there is the text of a message received from Mr Campbell to Dr Harris in respect of an upcoming flight to Port Douglas, and an enquiry as to the need for any medication due to a blood clot in the calf in the previous May;[10]
[10] Reply p 82.
(b)    on 24 January 2019 a surgery consultation is recorded by Dr James Annear in which there is no reference to the hip;
(c)    on 22 February 2019 a surgery consultation is recorded by Dr Harris noting soreness in the left hip, the injury at work while doing self defence course on 4 December 2018 and a slip and fall directly on the left side. Mobic was taken for close to a week, which possibly helped;[11]
[11] Reply p 83.
(d)    on 22 March 2019 a surgery consultation is recorded by Dr Harris containing reference to attendance “…for WC cert review”, reference to “…a surf today and it did aggravate Sx”, and continuation with weekly physio;[12]
[12] Reply p 84.
(e)    on 18 April 2019 a surgery consultation is recorded by Dr Jori Barzach containing reference to paddleboarding the previous day, and an incident with a boat with youths holding on to the outside thereof. Small abrasions, a 5 cm diameter bruising of 6^th rib and other superficial lacerations and abrasions are recorded on examination;[13]
[13] Reply p 84.
(f)    on 23 April 2019 a surgery consultation is recorded by Dr Harris, recording the following:
“Needs 2 WC certs - one for previous injury from Dec 2018, one from recent injury when injured by boat propeller.
Recovering from both injuries.
Continues to see Physio re left hip.”;[14]
(g)    on 21 May 2019 a surgery consultation recorded by Dr Harris, recording that the applicant felt ready to resume full duties, hip pain was non-existent most of the time and was only aggravated by excessive abduction, and that he was given a workers compensation certificate with no restrictions, for return to work the following day;[15]
(h)    on 18 February 2021 a surgery consultation recorded by Dr Warren Lee with a history of being dumped in the surf one and a half weeks previously, and examination recording cervical spine normal and shoulder range of motion normal;[16]
(i)    on 22 March 2021 a surgery consultation recorded by Dr Lee with a history of Mr Campbell having slipped on wet pavers on the way to train station, painful anterior left thigh, and on examination left vastus lateralis rupture, and some extension of the left knee, but still intact with considerable laterally visible concavity;
(j)    on 23 March 2021 a telephone consultation recorded by Dr Lee in respect of the result of an ultrasound revealing partial enthesial tear, measuring 21mm in length, of the rectus femoris muscle, with muscle fibre retraction. The respondent submits that this is a particularly significant entry;[17]
(k)    on 6 April 2021 a surgery consultation recorded by Dr Lee revealing slow progress with the left proximal femoris tear, and a further consultation on 19 April 2021 with Dr Lee noting left thigh/knee pain improving slowly, with a further week off work then reassessment for suitable, likely station, duties,[18] and
(l)    on 26 May 2021 a surgery consultation recorded by Dr Lee containing reference to left knee pain with exercises.
[14] Reply p 84.
[15] Reply pp 84-85.
[16] Reply p 89.
[17] Reply p 90.
[18] Reply p 91.
The respondent then refers to a series of entries in the clinical notes of The Mosman Practice over the period from 10 November 2021 to 8 February 2022 when Mr Campbell suffered sudden onset of left lower back pain moments after lifting two boxes of A4 paper, noting “(5+ reams in each box?)”. On 29 November 2021 Dr Lee notes the result of an MRI scan as revealing significant disc protrusion displacing left L3. A referral to Dr Raoul Pope was issued with a prescription for analgesics issued. By 8 February 2022 Dr Lee records that 10 weeks since the accident, the applicant was off Lyrica, had no left L3 radicular pain but some lower back pain.[19]
[19] Reply pp 94-98.
The respondent submits that, having regard to the proximity of the left hip to the left thigh and left lower back, these significant problems should have been considered by Dr Harris, Dr Ghabrial and Dr Glase when giving their opinions on the applicant’s left hip injury. The respondent submits that the entries in the clinical notes are corroboration of the diagnosis of Dr Miniter, and that the opinion of Dr Ghabrial should not be accepted. The left thigh and left lower back problems have not been referred to or explained by Dr Ghabrial when he says that the total left hip replacement surgery undergone by Mr Campbell in August 2023 was reasonably necessary as a result of the injury of 4 December 2018.
The respondent submits that there is a “giant hole” in the applicant’s evidence, that he has not discharged the onus on him to show that the surgery was reasonably necessary as a result of the work injury, and that there should be an award for the respondent.

Applicant

The applicant submits that the respondent’s reference to the applicant’s clinical records of The Mosman Practice referred to above does not assist its submission, based on the opinion of Dr Miniter.
The applicant notes from the clinical notes that in 2003 and 2009 he had to undergo surgery on his lumbar spine, and on his cervical spine in 2005 and 2014.[20] This is not disputed by the respondent. These injuries played no role in assessing the injury in 2018 to the applicant’s hip, and no role in assessing the need for surgery to the left hip as a result of that injury.
[20] Reply pp 23 and 94.

The applicant submits that the same comments apply to the injury referred to in the entries of Dr Lee dated 22 March 2021 and 23 March 2021. In the incident therein referred to, the applicant tears a muscle in his left leg, the rectus femoris muscle. The applicant questions how that injury has an impact on assessing the effects of the 2018 injury.
Likewise with the applicant’s activities after the 2018 injury. He does get back to recreational activities, and also returns to his activities as a general duties sergeant. The applicant is a man who is prepared to work, and has returned to work, after significant spinal surgery.
The applicant notes the surprise expressed by Dr Miniter that he had to take five months off work after the December 2018 injury. The applicant submits that there is almost a suggestion that he is malingering during this five months period. This is not borne out by the balance of the evidence, and not borne out by the fact that the applicant returned to normal general duties police work after serious spinal surgery.
The applicant notes that the respondent makes no submission that the applicant is not telling the truth in his statement evidence, or that there any credit issues.
The applicant refers to his statement evidence and that of his partner. That evidence is consistent with the fact that there is no suggestion that the applicant had any problem with his hip prior to December 2018. The fact that he had to take five months off work is not consistent with a minor insult or temporary aggravation, but is consistent with a significant injury.
The applicant refers to the entry in the clinical notes dated 21 May 2019 by Dr Harris that the hip pain was non existent most of the time and is only aggravated by excessive abduction. The applicant submits that it is consistent with there being a low level of pain and dysfunction at that time which continues up until shortly before the applicant needs his surgery. During this time the applicant is able to get back to his day-to-day life with a low level of pain present, which is aggravated by excessive abduction. The applicant is not suggesting that he suffered from a debilitating level of pain and dysfunction throughout the time up until he underwent his surgery.
In respect of the competing opinions of Dr Ghabrial and Dr Miniter, the applicant submits that whether the lateral tear was chronic degenerative tear, or an acute tear caused by the incident, is not determinative of the case; either way the applicant still wins. It could be accepted that the there was an aggravation of a chronic degenerative tear in accordance with the opinion of Dr Miniter, or the opinions of Dr Ghabrial, Dr Harris and Dr Glase that there was an acute tear on 4 December 2018 could be accepted. The applicant suffered an injury to the left hip on the day pleaded which has materially contributed to the need for surgery.
Returning to the opinion of Dr Miniter, in addition to the surprise expressed by the doctor to the amount of time off work following the injury, in his second report dated 22 August 2023 Dr Miniter records his understanding that the applicant had seen Dr Glase who advised total hip replacement, but that he had not seen his report. However, it is apparent from Dr Miniter’s first (consultation) report dated 11 May 2023 that he did have a copy of that report. In this context the applicant raises a question as to what should be made of Dr Miniter’s opinion.
The applicant refers to the report of Dr Harris dated 23 June 2023, noting that she has treated Mr Campbell since 2001. The applicant submits that the qualified opinion of Dr Harris that the incident of 4 December 2018 could have aggravated the underlying changes in the left hip must be read in context, because Dr Harris believes that that incident caused the labral tear which accelerated the underlying osteoarthritis.
The applicant notes that Dr Harris has been treating him for over 20 years, and that he served as a police officer for 35 years. His credit is unimpeached, and he has discharged the onus of proof on him that the injury of December 2018 materially contributed to the need for surgery in 2023. This is corroborated by the applicant’s evidence, his partner’s evidence, and the records of Dr Harris. Furthermore, Dr Miniter has not addressed the issue as to whether there was an aggravation of the degenerative condition in the left hip that has not ceased. In other words, he has not addressed the ultimate question.
The applicant submits that there should be a finding that the 2023 hip replacement surgery was reasonably necessary as a result of the injury on 4 December 2018.

FINDINGS AND REASONS

Injury

The author of the s 78 notice dated 16 May 2023 included in the reasons for the decision the following:
“EML were notified of a left hip injury on 4 December 2018 caused by the fall which caused pain in the left hip region. You had some time off work and then returned to operational duties from 21st May 2019.
You stopped working since 6 February 2023 and lodged a recurrence of your left hip injury on 17 February 2023. We received a certificate of capacity from Dr Harris, certifying you totally unfit to work.
After contacting Dr Harris and receiving his responses, the recurrence of your injury was accepted on 8 March 2023. “
Reference was then made to the consultation (report) of Dr Glase dated 31 March 2023 and the independent medical examination of the applicant by Dr Miniter on 4 May 2023.
The respondent accepts the recurrence of the injury of 4 December 2018. Dr Miniter in his report dated 11 May 2023, after noting the five months that the applicant had off work following the December 2018 injury, says:
“This is somewhat surprising when one views the MRI scan taken soon after that time which does not demonstrate any major injury and only a degree of patchy osteoarthritic change. The morphology of the hip seen on the MRI scan at that stage and of the x-ray, clearly demonstrate impingement and developing OA. There is no evidence of local soft tissue trauma to justify a serious local and recent injury.”
Later in the report he says:
“I could see no association between the alleged fall in the workplace and the current situation, as he simply has a predisposition to osteoarthritic disease.”
and:
“Based on the clinical information and review of the attached correspondence the diagnosis is not one of injury, but rather of pre-existing osteoarthritic disease which relates to both hips, and which is clearly seen on his x-rays.”
The diagnosis that the incident “is not one of injury” is at odds with the acceptance of the recurrence of injury by EML on 8 March 2023.
In his report dated 22 August 2023 Dr Miniter has the benefit of the report of Dr Ghabrial dated 16 June 2023, an MRI dated 25 February 2019, and the clinical records from The Mosman Practice. He says that the labral tear is clearly a chronic problem and not associated with the injury in question.
“If there had been a serious injury, one would be expecting that there would be bone bruising or soft tissue swelling. There is not even an effusion to indicate that this matter was a result of the injury in question.”
Dr Miniter refers to the belief of Dr Ghabrial that the tear of the superior and anterior portion of the acetabular labrum is “…most likely an avulsion type injury to the labral ligament.” Dr Miniter says that this is not correct as labral tears are as a consequence, in general terms, or [sic, of] chronic impingement and not as a result of an acute injury. If there had been an acute injury, then there should be bone scan changes to indicate this. He says:
“I understand that the MRI scan was performed in February and the injury occurred in December 2018. One should still have seen a degree of abnormality at the site of insertion of the acetabular labrum if there had been an acute injury.”
It is not in issue that the applicant had no problems with his left hip prior to the incident of 4 December 2018. This is confirmed by Dr Harris who had treated him since 2001, and by a perusal of the clinical notes of The Mosman Practice in evidence which commence with a consultation of 3 January 2000.[21] The issue in the case, as observed by the respondent at the commencement of its submissions, is what happened in the applicant’s left hip in the incident of 4 December 2018.
[21] Reply p 35.
Dr Ghabrial had access to the MRI scan performed on 25 February 2019 when preparing his report dated 16 June 2023, commenting that the scan confirmed no evidence of any bony injuries, but evidence of a tear of the superior anterior labrum, associated with osteophyte at that level which is most likely an avulsion type of injury to the labral ligament. He said that there were minor changes in the superior aspect of the left hip consistent with the development of osteoarthritic changes in the hip joint. Under “OPINION”, Dr Ghabrial says with reference to the December 2018 training incident:
“Clinical assessment and investigations 2 – 3 months later showed an osteophyte at the labral tear, which I believe is an avulsion fracture of the labrum from the acetabulum, with secondary impingement causing the development of degenerative changes to the superior aspect of the left hip initially, and now he has developed advanced osteoarthritis in the left hip requiring left total hip replacement.”
Dr Miniter had access to the MRI scan of 25 February 2019 and the report of Dr Ghabrial of 16 June 2023 when preparing his report dated 22 August 2023. The doctor says that the labral tear that was identified on the original MRI scan was clearly a long-standing problem, and that there were no acute features on the scan. Earlier in the report he said that these labral tears are as a consequence, in general terms, of chronic impingement and not as a result of an acute injury.
Dr Harris in her report dated 23 June 2023 says that the MRI scan of 25 February 2019 demonstrated a tear of the anterior superior labrum with changes of mild osteoarthritis, and believes that the incident of 4 December caused the labral tear which then accelerated the underlying osteoarthritis. This belief must be read in context with the earlier opinion expressed in the same paragraph of her report that the incident on 4 December could have aggravated the underlying changes in the left hip.
The applicant was off work for a period of five or six months before he returned to operational duties. Notwithstanding the surprise expressed by Dr Miniter at the fact that Mr Campbell took an entire five month period away from work after the original injury given that the original investigations demonstrated very minor changes in the hip, that period of time off work does indicate it was a significant injury. Dr Miniter says that if there had been an aggravation of the applicant’s condition in the December 2018 incident:
“…one would have expected him to return to work over a 2 to 3 week period, and the fact that he had a five-month period away from work after the original injury, does not have a clear explanation.”
An explanation may be that, whether the applicant suffered a tear of the superior anterior portion of the acetabular labrum as both Dr Ghabrial and Dr Harris believe, or an aggravation of the mild arthritic condition in the left hip demonstrated as the respondent submits by the presence of osteophyte, Mr Campbell suffered a significant injury on 4 December 2018. Dr Miniter says that if it was an aggravation, one would have expected Mr Campbell to have returned to work over a two to three week period. That did not occur.
The applicant submits that it is not to the point which of the aforementioned scenarios occurred, he must nevertheless succeed. That submission has merit.
When the applicant saw Dr Harris on 21 May 2019, informing her that he was ready for full duties and that his hip pain was non existent most of the time, he nevertheless said that it was “…only aggravated by excessive abduction.” The applicant says in his statement that he was able to return to full duties in or around July 2019, but that he was still suffering from pain in his left hip. That statement is consistent with the clinical note of 21 May 2019.
The respondent places great significance of the various entries in the clinical notes indicating that after his return to work he consulted general practitioners at The Mosman Practice with a range of complaints, resulting from leisure time and work activities. These are summarised at [35(e)-36] above. The respondent says that Dr Ghabrial should have been informed of the contents of the clinical notes, and that the fact that both he and Dr Glase were not so informed detracts from the weight that can be placed on their reports. That is, the assumptions on which the doctors relied in proffering their opinions, do not provide a ‘fair climate’ for the acceptance of their opinions that the surgery proposed by Dr Glase is reasonably necessary as a result of the injury. This submission could not apply to the opinion of Dr Harris, Mr Campbell’s long time treating practitioner who had access to the clinical notes of The Mosman Practice.
The reference to a ‘fair climate’ for the acceptance of expert opinion is no doubt based on what the High Court said at [9] in Paric v John Holland (Constructions) Pty Ltd[22] namely:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
[22] [1985] HCA 58; 59 ALJR 844 (Paric).
In the Court of Appeal in Paric, Samuels JA explained the matter as follows:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”[23]
[23] 1984] 2 NSWLR 505 (per Samuels JA, Hutley and Priestley JJA agreeing), 509G–510B.
The applicant says that these entries in the clinical notes do not assist its case, pointing out that the applicant:
(a)    worked as a policeman for 35 years;
(b)    returned to work on a number of occasions notwithstanding having undergone serious surgery on his cervical and lumbar spine;
(c)    is a credible witness, his credit not having been challenged in any way, and
(d)    is supported by the evidence of his partner of approximately 35 years, Sue Drummond, in her statement dated 12 September 2023.
The respondent also submits that the applicant had the report of Dr Miniter dated 22 August 2023 in sufficient time to refer it to Dr Ghabrial for comment, but did not do so. I do not regard the absence of any further report from Dr Ghabrial as necessary, or fatal to the applicant’s case. The matter must be decided on the evidence put before the Commission by the parties.
In my view, the reports of Dr Glase dated 31 March 2023 and Dr Ghabrial dated 16 June 2023 do reveal a fair climate for the opinions expressed therein.
In the case of the report of Dr Glase, the doctor notes that an MRI at the time of injury reported a labral tear and some early osteoarthritic change. A recent MRI confirms the extent of the articular cartilage wear has progressed since the original injury in December 2018. That opinion is consistent with the incident of 4 December 2018 causing an aggravation of the pre-existing but asymptomatic degenerative change in the left hip. Dr Glase does not comment on the causation of the labral tear, addressed by Dr Ghabrial and Dr Harris.
In his report, Dr Ghabrial notes the results of the MRI scan performed 25 February 2019 as revealing minor changes in the superior aspect of the left hip joint with the development of osteoarthritic changes in the hip joint. He notes that since the subject injury the applicant has continued to have increasing symptoms in his left hip joint, and recent X-rays showed the development of severe osteoarthritis of the left hip. Irrespective of whether or not a labral tear occurred on 4 December 2018, the history recorded by Dr Ghabrial is consistent with increasing symptoms in the left hip over the time from injury on 4 December 2018, or from 21 May 2019 when reviewed by Dr Harris, to early 2023 when he had to cease work because of the left hip symptoms.
I do not regard the incidents highlighted by the respondent extracted from the clinical notes of The Mosman Practice as relevant to the progression of the symptoms in the left hip of which Mr Campbell now complaints. The respondent highlighted in particular the incidents referred to in [35(h)-(l)] above, when the applicant injured his cervical spine and left shoulder in the surfing incident, and ruptured a muscle in his thigh when he slipped on a wet pavement. They are injuries to different body parts, and not inconsistent with the progress of symptoms in the left hip.
I find that a fair climate has been established for acceptance of the opinions of Dr Glase and Dr Ghabrial on the issue of injury to the applicant’s left hip on 4 December 2018, and the progress of symptoms to the point that surgery was advised. I accept the opinion of Dr Harris, made with the benefit of access to clinical notes, as to the progress of symptoms in the left hip from injury to early 2023.
I accept the opinions of Dr Ghabrial and Dr Harris and find that the incident of 4 December 2018 caused a tear of the anterior superior labrum which then aggravated and accelerated the underlying arthritis from which the applicant suffered.
In the alternative, if I am incorrect in this finding, I find that the incident of 4 December 2018 aggravated and accelerated the underlying arthritis from which the applicant suffered.

Surgery

To succeed the applicant has to show that, applying the commonsense test of causation, the treatment is reasonably necessary as a result of injury. Deputy President Roche set out the task of an applicant in proving the reasonable necessity for treatment at [58] in Murphy v Allity Management Services Pty Ltd as follows:[24]
“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).”
[24] [2015] NSWWCCPD 49.
Dr Miniter is of the opinion that the surgery proposed by Dr Glase is reasonably necessary, but that it is not due to a work related condition. He gives a good prognosis.
Dr Ghabrial says that from the history given to him by Mr Campbell he believes that his employment is considered to be the main contributing factor to the present clinical features, disabilities, and impairment. That is not the test in respect of the issue of the reasonable necessity for surgery as a result of an injury. However, that opinion provides a basis for the finding that the applicant’s injury materially contributed to the need for surgery recommended by Dr Glase.

Dr Harris’ opinion is that had Mr Campbell not injured himself on 4 December 2018, he would not be contemplating surgery now. That opinion provides a clear basis for the finding that the applicant’s with the respondent injury materially contributed to the need for surgery recommended by Dr Glase.
I find that the injury sustained by the applicant on 4 December 2018 materially contributed to the need for surgery recommended by Dr Glase.
The surgery was carried out by Dr Glase on 8 August 2023.

SUMMARY

The applicant sustained injury to his left hip on 4 December 2018 arising out of or in the course of his employment with the respondent.
The total left hip replacement surgery, recommended by Dr Glase in his report dated 31 March 2023 and performed on 8 August 2023, was reasonably necessary as a result of injury on 4 December 2018.
The respondent is to pay the costs of and incidental to that surgery pursuant to s 60 of the 1987 Act.
The respondent is to pay the applicant’s costs as agreed or assessed.

[2023] NSWPIC 636

28 November 2023