Clark v State of NSW (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Clark v State of NSW (NSW Police Force) [2021] NSWPIC 530
APPLICANT:	Jeffrey Travis Clark
RESPONDENT:	State of NSW (NSW Police Force)
MEMBER:	Rachel Homan
DATE OF DECISION:	17 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for costs of and incidental to right knee surgery; undisputed patella dislocation injury at work; two previous dislocation events and anatomical predisposition to dislocation; whether surgery reasonably necessary as a result of the injury; Murphy v Allity Management Services Pty Ltd applied; Held - although symptoms of pain and swelling had abated, changes in pathology, function and clinical presentation persisted and materially contributed to the need for surgery; surgery was reasonably necessary as a result of injury; award for the applicant.
DETERMINATIONS MADE:	1. The right knee surgery proposed by Dr Yeong Joe Lau was reasonably necessary as a result of the injury on 6 April 2021.
ORDERS MADE:	2. The respondent to pay the costs of and incidental to the right knee surgery in accordance with s 60 of the Workers Compensation Act 1987. 3. The respondent to pay the applicant’s costs as agreed or assessed. 4. Liberty to the parties to apply in respect of the costs order within 14 days.

STATEMENT OF REASONS

BACKGROUND

Mr Jeffrey Travis Clark (the applicant) is a police officer employed by the State of NSW (NSW Police Force (the respondent). The applicant sustained an injury to his right knee on 6 April 2021 when he struck his knee on a baton holder inside a police vehicle he was entering. Liability for an injury to the applicant’s right knee is not in dispute.
The applicant’s orthopaedic surgeon, Dr Yeong Joe Lau, subsequently sought approval to perform surgery to correct patellofemoral instability at the applicant’s right knee. Liability for the proposed treatment was disputed on 30 June 2021 in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Following an application for internal review, the decision to dispute liability was maintained in a further notice issued on 12 August 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 6 October 2021. The applicant seeks orders for compensation for the costs of and incidental to the right knee surgery in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the right knee surgery is reasonably necessary as a result of the accepted work injury on 6 April 2021, and
(b) orders as to costs.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing by telephone on 13 December 2021. The applicant was represented by Mr Graham Barter of counsel, instructed by Ms Elizabeth Dalyell. The respondent was represented by Mr Tony Baker of counsel, instructed by Mr Brayden Mead.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents, and

(c) document attached to an Application to Admit Late Documents lodged by the applicant on 9 November 2021.

Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 18 September 2021.
The applicant said he was attested as a police officer on 13 December 2019. Prior to being attested, the applicant passed a medical assessment and fitness test without any issues. The applicant did not experience any health issues or suffer any injury after joining the police force until 6 April 2021.

The applicant described the injury on 6 April 2021 as follows:
“I opened the door to the Police vehicle and on the door is two solid baton holders that holds the long batons. At the time there was no long baton in the door of the vehicle. I lifted my left leg into the vehicle and as I lifted my right leg up, my knee was bent, and it collided with left inner side of my knee. The knock to the side of my knee was that hard it caused my patella to dislocate. I straightened my leg straight away causing my patella to go back into place.
When the incident occurred, I felt severe pain in my right knee causing me to limp.”
The applicant continued to perform duties for approximately two hours during which time the applicant’s knee swelled to the point that he had issues walking. The applicant returned home, got a knee brace and continued to work. At the end of the applicant’s shift, he returned home and iced his knee to reduce some of the swelling. The applicant saw his general practitioner the next day.
The applicant’s general practitioner referred the applicant for an MRI scan and prescribed anti-inflammatories. The applicant was later referred to orthopaedic surgeon, Dr Lau. Dr Lau recommended that the applicant undergo surgery to the right knee. Without the surgery, the applicant’s patella might dislocate again.
The applicant’s job required him to be physically fit and often required running, jumping, climbing, chasing, weaponless control and walking.
The applicant disclosed two prior injuries to his right knee. In 2015, the applicant dislocated his right patella playing AFL when the knee was violently knocked during the game.
In 2016, the applicant dislocated his right knee again while playing football, when the knee was knocked by another person’s knee.
There were no further incidents involving the knee until 6 April 2021.
The applicant noted that other workers had told the applicant that they had hit their knee on the same baton holder, causing a large amount of pain, bruising and sometimes splitting their skin causing them to bleed.
Since the accident, the applicant had been performing restricted duties, such as station officer.

Associate Professor van der Rijt

Orthopaedic surgeon, Associate Professor Adrian van der Rijt prepared an independent assessment report addressed “To whom it may concern”, dated 16 April 2018.
The report took a history of the applicant dislocating his right knee patella on two occasions previously while playing football.
The first incident was described as the applicant’s knee hitting into the ground and popping out due to direct mechanical trauma from a fall. The applicant was taken to the Emergency Department at Wagga Wagga Rural Referral Hospital where the knee was extended under sedation. After two to three weeks of physiotherapy, the applicant returned to sport and had no ongoing symptoms.
The second incident occurred when a fellow player kneed him in the knee and it popped out. An ambulance attended and the patella was reduced. The applicant did not have significant swelling or pain. The applicant undertook the rehabilitation exercises he had previously been shown and made a full recovery.
The applicant returned to normal sports including playing AFL, rugby league and touch football. The applicant reported no symptoms from his knee or any functional restriction.
Dr van der Rijt’s examination was recorded as follows:
“On provocative testing with chair rise, squat and lunge he has normal patellofemoral mechanics, no evidence of maltracking, no crepitus or functional restriction of range of motion under load. He does not have a J sign. He does not have an effusion, he has symmetric normal quadriceps, muscle bulk and power. He does not have patellar or joint line tenderness and patellofemoral compression in translation does not induce crepitus or pain. There is a full range of movement in the right knee. There is normal stability of the collateral and cruciate ligaments.
The patient does not have patellar subluxation or dislocation and has no apprehension on provocative testing for patellar instability.”
Dr van der Rijt noted that the applicant had undergone an MRI of the right knee on 23 March 2015 and recorded the relevant findings, which were said to be consistent with the applicant having suffered an episode of patella dislocation. These included elevation of the femoral attachment of the medial patellofemoral ligament, consistent with an episode of patellar instability. There were normal findings in the articular surface of the patella and the femoral trochlea.
Dr van der Rijt gave the opinion:
“The patient suffered two episodes of traumatic dislocation of the right knee patella. In terms of prognosis for risk of recurrent patellar instability the key factor is that these episodes were traumatic in aetiology. The other important prognostic factor is the unremarkable normal findings on current clinical examination and the presence of an intact articular surface and patellofemoral mechanics on the MRI.
The patient has returned to normal high demand function including playing provocative sports without any disability symptoms or functional restrictions. The current examination is unremarkable and in particular there is no evidence of a specific risk for patellar instability and there is no evidence of disruption of the patellofemoral articular surface.
The patient does not carry any increased risk of further symptoms arising from the right knee. The patient is fit to undertake normal activities including high demand sport. The patient is fit to undertake normal training to become a police officer and to undertake normal unrestricted duties as a police officer.”

Dr Lau

The applicant’s orthopaedic surgeon, Dr Yeong Joe Lau, responded to a questionnaire from the insurer dated 19 April 2021.
Dr Lau noted that the applicant had an anatomical predisposition to dislocation and a recent MRI report noted both acute and chronic pathology. Cartilage and meniscal injury was potentially consistent with the recent trauma. Dr Lau gave the opinion,
“The recent trauma is likely to have worsened his instability. Physiotherapy has been previously unsuccessful.”
On the same date, Dr Lau prepared a report for the applicant’s general practitioner. Dr Lau took a history of the recent injury to the right knee in which the applicant felt his kneecap translate laterally. Dr Lau noted that this was the third time this had happened. Dr Lau recorded that the applicant’s knee had improved after being painful and swollen initially.
Dr Lau’s findings on examination were recorded as follows:
“On examination today Jeffrey walked with a normal gait. His knee alignment appeared to be physiological. There was J tracking of his right patella as well as palpable crepitus. There was no joint line tenderness on palpation. The patella apprehension test was extremely positive. There was some laxity in his ACL compared to the opposite side where there was a firm end point to Lachman's test. The pivot shift test was negative. A dorsalis pedis pulse was present. Sensation in his foot was intact. Neither his hip nor his ankle were irritable today.”
A recent MRI scan was recorded to show,
“ …a dysplastic trochlea. There is a laterally tilted patella and evidence of previous injury to the MPFL. There is some chondromalacia patellae. His ACL appears attenuated but intact.”

Dr Lau made a recommendation for surgery as follows:
“I believe that Jeffrey will benefit from surgery. He has recurrent patellofemoral instability. This is obviously not ideal for a police officer. His patella may dislocate. Surgical stabilisation would involve reconstructing the MPFL with 1 of his hamstring tendons.”
Dr Lau prepared a further report for the applicant’s solicitor dated 5 November 2021. In that report, Dr Lau gave the opinion,
“I do believe that surgery to Mr. Clark's right knee is reasonably necessary because of the incident which occurred on the 6 April 2021. I believe that the direct impact to his knee caused his knee cap to subluxate laterally. This further injured his MPFL which I am planning to reconstruct. The cartilage injury involving his patella I believe to have been pre-existing but would have deteriorated following this episode of subluxation. I am planning to address this during surgery also.”

Associate Professor Miniter

The respondent relies on medicolegal reports prepared by Associate Professor Paul Miniter, dated 26 May 2021 and 30 June 2021.
In his first report, Dr Miniter took a history of the two previous patella dislocations at the right knee:
“After the 2016 episode, he was seen by an orthopaedic surgeon and whilst it was felt that he could return to activities, he was never entirely confident in relation to the knee after that time.
He functioned reasonably well until a recent episode whilst he was working as a police officer. He told me that he was at work and that he was attempting to get into a vehicle and bumped a device which is designed to hold one of the batons in place. He felt that his kneecap went out of place. It spontaneously reduced.”
Dr Miniter performed an examination recorded as follows:
“Mr Clark presents with marked ligamentous laxity. He has a loose feeling to both of his knees and the apprehension test is positive at both patellofemoral joints. With the patella reduced, he appears to have an increased Q angle. The patella is quite subluxable on both sides, worse on the right. He has significant J shaped tracking curve and I believe and increased TT/TG distance.”
Dr Miniter gave the opinion that the applicant had a combination of patellofemoral dysplasia and marked ligamentous laxity. With regard to treatment, Dr Miniter stated:
“I personally feel that an isolated medial patellofemoral ligament reconstruction will not be sufficient to resolve this issue and I believe that he will require a tibial tubercle transfer simultaneously. He has a genuine issue and I believe is not at this stage entirely fit for his normal activities.”
Dr Miniter gave the opinion that there was a pre-existing condition:
“This matter is a definite pre-existing issue. The matter is not related specifically to the workplace except by virtue of the minor episode which occurred. Simply put, he is at substantial elevated risk of patellofemoral instability by dint of his physical examination and general predisposition to the matter in question. The other knee is very similar to examination.”

Dr Miniter accepted that there had been an aggravation of the pre-existing condition:
“His employment has aggravated the pre-existing issue. There are certainly no findings on the latest MRI scan which was taken soon after the injury to suggest that a major acute injury has occurred. I suspect that he has had a simple patellofemoral subluxation.”
Dr Miniter gave the opinion that the surgery proposed by Dr Lau was reasonable and necessary but probably insufficient to resolve the matter. The applicant required a surgical procedure in order to return to preinjury duties if he wished to continue work as a police officer.
In his supplementary report, Dr Miniter gave the opinion that the aggravating of a pre-existing pathological process had settled:
“Aggravation is a period of between four and six weeks. The matter has thus settled and aggravation is no longer a feature.”
With regard to the causal relationship between the need for surgery and the work injury, Dr Miniter stated:
“I do believe that surgery is reasonable and necessary. However, I do not believe that surgery should be performed under workers’ compensation. The matter is clearly pre-existing.”

Applicant’s submissions

Mr Barter submitted that the applicant had undergone the surgery proposed by Dr Lau on 6 November 2021.
Mr Barter agreed that the sole issue in dispute was whether the surgery had been reasonably necessary as a result of the work injury on 6 April 2021.
Mr Barter submitted that underlying pathology at the applicant’s right knee was rendered symptomatic in the injury. The pathology at the right knee was asymptomatic previously. There was no evidence of any symptoms in the knee immediately prior to the injury. In 2018, Dr van der Rijt confirmed that the underlying pathology was not having any effect on the applicant’s ability to carry out day to day or even more strenuous activities.
Mr Barter submitted that the requirement for an operation was to relieve the applicant’s symptomology. It was necessary to address the pre-existing pathology in order to relieve the applicant’s symptoms. The onset of symptoms is what provoked Dr Lau’s involvement.
Even if the pathology was not caused by the incident on 6 April 2021, it was so affected by that injury as to provoke the need for surgery. The surgery was, therefore, reasonably necessary as a result of the accepted injury.
Mr Barter referred to the authorities in Murphy v Allity Management Services Pty Ltd[1], Diab v NRMA Ltd[2] and Mercer v ANZ Banking Group[3].

[1] [2015] NSWWCCPD 49.

[2] [2014] NSWWCCPD 72.

[3] [2000] NSWCA 138.

The applicant did not require surgery until his knee was rendered symptomatic by the injury. The applicant’s symptoms continued until corrected by the surgery. Therefore, the surgery was reasonably necessary as a result of the work injury.

Respondent’s submissions

Mr Baker submitted that a distinction could be drawn between the previous episodes of trauma to the right knee and the work incident. There was no dispute that there was an incident but the issue was the consequences of that incident.
Mr Baker noted the applicant’s evidence as to the circumstances of the previous dislocations. The first incident involved a dislocation of the patella when the knee was violently knocked. The second incident occurred when another player kneed the applicant in the knee and the patella popped out. The mechanisms of the two previous dislocations were very unlike the knock to the knee in April 2021. The previous dislocations occurred following significant mechanical trauma, requiring an ambulance to be called and Emergency Department presentation.
Mr Baker noted that Dr van der Rijt recorded that an MRI of the right knee performed in March 2015 was reported to show elevation of the femoral attachment of the medial patellofemoral ligament. This was the same ligament as that which Dr Lau addressed with the surgery. The pathology noted by Dr Miniter and Dr Lau was evident in the 2015 MRI.
The work-related episode was described by the applicant as involving him lifting his knee and it colliding with the baton holder. The applicant straightened his leg and straightaway the patella went into place. The applicant continued on with work after putting on a knee brace. It was significant that the applicant already had a knee brace and knew what to do.
Mr Baker submitted that Dr Lau gave the opinion that the surgery was required because the knee might dislocate again. Dr Miniter agreed that the surgery was reasonable but the relevant issue was whether there was a change in pathology or a material contribution from the work injury resulting in the need for surgery.
The work incident did not, in the applicant’s case, involve any bruising or splitting of the skin unlike the others in the workplace whom the applicant had identified as suffering similar injuries. The applicant’s event was relatively minor and the patella dislocated readily.
Mr Baker said that it was necessary to consider the applicant’s condition after the event. Dr Lau saw the applicant on 19 April 2021, at which time the applicant was already operational and his knee had improved. The applicant had a normal gait and his knee alignment appeared to be physiological. There was no joint line tenderness on palpation.

Mr Baker noted Dr Miniter’s opinion that the pathology aggravated by the work event was the same as that shown in the 2015 MRI. There were no acute features and nothing to demonstrate a contribution from the fairly innocuous episode on 6 April 2021.
Dr Miniter noted that both knees were subluxable. There was no evidence of a major injury and it appeared that the applicant had experienced a simple subluxation. Dr Miniter considered that it was highly unlikely that the applicant would have had an issue with his knee if he did not have the previous patella instability, marked ligamentous laxity and a strong predisposition towards patellofemoral instability.
Mr Baker submitted that the applicant presented to Dr Miniter as being able to walk around normally with no acute injury. Dr Miniter’s opinion was that the episode created no material change as to cause the need for surgery. The purpose of the surgery was to protect the applicant from further dislocation.
Mr Baker submitted that Dr Lau’s opinion suggested he had not seen the 2015 MRI. The more recent MRI did not show any new pathology or features such as a bone bruise to suggest an acute event.
The applicant’s presentation was consistent with Dr Miniter’s opinion that an aggravation would cease after four to six weeks.

Applicant’s submissions in reply

The applicant submitted that whilst the pain and swelling appeared to have improved, the applicant continued to experience instability as the major continuing symptom. Both Dr Miniter and Dr Lau noted the instability.
It was not apparent that Dr Miniter had regard to the report of Dr van der Rijt in which the opinion was given that the applicant had no instability in 2018. There was no evidence of any other event that might have caused more recent instability other than the work injury.
Dr Lau gave a clear analysis of how he had come to the conclusion that the surgery was reasonably necessary as a result of the work injury.
It was not necessary for the applicant to establish that a serious injury had occurred. A small injury could suffice. The instability had not been present at the time of Dr van der Rijt’s 2018 report. There was no evidence of any other subluxations other than the injury in April 2021. Dr Lau had given a clear opinion that the work injury led to an increase in instability. The need for surgery to address the instability therefore resulted from the work injury.

Respondent’s further submissions

The respondent noted that Dr Miniter had found instability in both knees. The symptoms of pain and swelling disappeared following the work injury. There was no evidence of any restriction in movements. The applicant still had loose ligaments but he had always had these.

FINDINGS AND REASONS

There is no dispute in this case that the applicant sustained an “injury” to his right knee at work on 6 April 2021.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
It is the applicant who bears the onus of establishing on the balance of probabilities that the surgery performed by Dr Lau was reasonably necessary as a result of the injury on 6 April 2021. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[4] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246.

In considering whether the surgery was reasonably necessary as a result of the accepted work injury, it is relevant to note that there is no dispute that the surgery was reasonably necessary medical treatment for the pathology at the applicant’s right knee. Although Dr Miniter recommended an additional procedure, he clearly was of the view that the surgery proposed by Dr Lau was also reasonably necessary.
It is therefore the causal relationship between the surgery and the work injury which is the primary issue in these proceedings. In this regard, the respondent relies on the opinion, expressed by Dr Miniter, that the effects of the work injury had ceased and the applicant’s current presentation was due to the effects of his pre-existing pathology.
The medical evidence is consistent in demonstrating a pre-existing condition at the right knee. Dr Miniter observed that the applicant had previous episodes of patellar instability, marked ligamentous laxity and a strong predisposition towards patellofemoral instability. Similarly, Dr Lau noted that the applicant had an anatomical predisposition to dislocation. The recent MRI report noted both acute and chronic pathology. That the applicant had suffered previous episodes of patella dislocation is confirmed in both the applicant’s evidence and the report of Dr van der Rijt.
The presence of pre-existing pathology or anatomical predisposition towards patellofemoral instability at the right knee does not necessarily mean that the need for the surgery in question did not “result from” the work injury. In Taxis Combined Services (Victoria) Pty Ltd v Schokman[5] Deputy President Roche found:

“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not ‘result from’ the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5 DDCR 286).
…
It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary ‘as a result of’ the injury. On the evidence called from Dr Roessler, he easily met that test.”
[5] [2014] NSWWCCPD 18 at [54].

It is well-established that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[6] Deputy President Roche stated:
“[57]…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of evidence from Dr Lau tends to confirm that treatment is recoverable under s that the applicant’s symptoms of pain and swelling did 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”

[6] [2015] NSWWCCPD 49.

The relevant question is whether the injury materially contributed to the need for the surgery performed by Dr Lau.

Dr Miniter was of the opinion the causal relationship between the injury and the need for surgery was lacking based on his view that any work related aggravation of the pre-existing pathology would have ceased within 4 to 6 weeks.
The evidence before me does tend to confirm that the applicant’s symptoms of pain and swelling subsided relatively soon after the dislocation on 6 April 2021. When Dr Lau examined the applicant on 19 April 2021, he noted that the applicant was walking with a normal gait, had normal knee alignment and there was no joint line tenderness on palpation. The applicant reported that the pain and swelling had improved. Dr Miniter’s examination on 26 May 2021 also did not suggest any ongoing swelling or symptoms of pain.
The evidence does not, however, suggest that the applicant’s knee returned to its pre-injury state. The report from Dr van der Rijt provides a useful point of comparison between the applicant’s post-injury presentation and his presentation prior to the injury but after the two previous dislocations.
Prior to the commencement of the applicant’s employment with the respondent, the applicant was reported to have made a full recovery from the earlier incidents. The applicant had returned to playing provocative sports including AFL, rugby league and touch football without any disability symptoms or functional restrictions. The applicant was assessed to be fit to undertake normal training to become a police officer and to undertake normal unrestricted duties as a police officer.
In contrast, the applicant has given evidence that since the injury of 6 April 2021 he had been performing restricted duties such as station officer. Both Dr Lau and Dr Miniter were of the view that the applicant was unable to perform his pre-injury duties as a police officer without the surgery. The applicant therefore had a significant functional limitation at the right knee following the injury which had not been present previously.
The respondent noted the presence of similar pathology at the left knee to that found at the right. Dr Miniter gave the opinion that the surgery proposed by Dr Lau was to address the pre-existing condition at the knee and was unrelated to the work injury.
It is not, however, apparent that Dr Miniter had the benefit of reading Dr van der Rijt’s 2018 report. There are a number of differences in the examination performed by Dr van der Rijt prior to the injury compared to the examinations performed by Dr Lau and Dr Miniter following the injury.
Prior to the injury, Dr van der Rijt found that the applicant did not have a J sign or any crepitus. After the injury, both Dr Lau and Dr Miniter observed J tracking of the right patella and Dr Lau found palpable crepitus.
Dr van der Rijt reported that there was no apprehension on provocative testing for patellar instability. In contrast, Dr Lau recorded that the patella apprehension test was extremely positive. Dr Miniter found the apprehension test to be positive at the patellofemoral joint on both knees.
Dr van der Rijt found there was normal stability of the collateral and cruciate ligaments and reported that the 2015 MRI showed normal articular surfaces, normal anterior and posterior cruciate and normal menisci. Dr Lau, on the other hand found laxity in the ACL and observed that the recent MRI showed an attenuated ACL and cartilage and meniscal injury which was potentially consistent with the recent trauma.
Dr Miniter indicated that the latest MRI scan contained no findings to suggest that a “major acute injury” had occurred. The respondent also made submissions that the applicant’s evidence did not suggest that the incident on the 6 April 2021 involved a significant mechanical trauma of the kind experienced in 2015 and 2016.
I am satisfied, however, that the incident on 6 April 2021 did involve some material trauma to the knee. The trauma was sufficient to dislocate the patella and give rise to “severe” pain and swelling affecting the applicant’s ability to walk. Dr Lau has given the clear opinion in his most recent report that the 6 April 2021 incident caused further injury to the applicant’s medial patellofemoral ligament and further cartilage injury to the patella. Whilst the pain and swelling had subsided, the trauma on 6 April 2021 had worsened the instability at the knee, giving rise to the need for surgery.
Although Dr van der Rijt’s report confirmed that there was elevation of the femoral attachment at the medial patellofemoral ligament demonstrated on the MRI on 23 March 2015 and although there had been previous episodes of patella dislocation, there was, at that point in time, no increased risk of further symptoms arising from the right knee. There was no evidence of a specific risk for patellar instability.
The changes in the applicant’s clinical presentation and level of function post injury compared to that at the time of Dr van der Rijt’s examination are not addressed in Dr Miniter’s reports.
Whilst the applicant certainly had pre-existing pathology and an anatomical predisposition to dislocation prior to the injury, I am satisfied on the balance of probabilities that the event on 6 April 2021 caused material changes to the pathology, function and clinical presentation at the applicant’s right knee.
Prior to the work injury, there was no suggestion that any surgery was required to address the pathology at the applicant’s knee and he was independently assessed as being able to undertake normal unrestricted duties as a police officer. Following the injury, there was a consensus of medical opinion that the applicant now required the surgery and without it was unable to return to his pre-injury duties.
I am satisfied that the injury on 6 April 2021 materially contributed to the need for surgery. I am therefore satisfied that the surgery proposed by Dr Lau was reasonably necessary as a result of the injury for the purposes of s 60 of the 1987 Act.
It follows, that there will be an order for the respondent to pay the costs of and incidental to the surgery performed by Dr Lau pursuant to s 60 of the 1987 Act.
As the applicant is an exempt worker, it is appropriate that an order be made for the respondent to pay the applicant’s costs as agreed or assessed. Neither party made any application for an uplift due to complexity at the arbitration hearing. I will, however, grant liberty to the parties to apply in that regard within 14 days of this determination.

[2021] NSWPIC 530

17 December 2021