Davey v Awaken Coffee Van Pty Ltd

[2024] NSWPIC 183

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Davey v Awaken Coffee Van Pty Ltd [2024] NSWPIC 183

APPLICANT:

Narelle Davey

RESPONDENT:

Awaken Coffee Van Pty Limited

MEMBER:

Anthony Scarcella

DATE OF DECISION:

12 April 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; whether the left total knee replacement surgery proposed by Dr Brighton was as a result of the left knee injury sustained by the applicant in the course of her employment with the respondent on 14 October 2020 within the meaning of section 60; Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4), and Murphy v Allity Management Services Pty Ltd considered and applied; expert evidence; Hancock v East Coast Timbers Products Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, and NSW Police Force v Hahn considered; Held – the left total knee replacement surgery proposed by Dr Roger Brighton is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent on 14 October 2020 within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the left total knee replacement surgery proposed by Dr Roger Brighton at the gazetted rates.

DETERMINATIONS MADE:

The Commission determines:

1. The left total knee replacement surgery proposed by Dr Roger Brighton is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent on 14 October 2020 within the meaning of s 60 of the Workers Compensation Act 1987.

The Commission orders:

2.     The respondent is to pay for the costs of and ancillary to the left total knee replacement surgery proposed by Dr Roger Brighton at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Ms Narelle Davey, is a 49-year-old woman who was employed by the respondent, Awaken Coffee Van Pty Limited (Awaken).

2. On 14 October 2020, Ms Davey alleges that, whilst at work for Awaken, she sustained a twisting injury to her left knee.

3. Ms Davey lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).

4. On 24 September 2021, NSW Self Insurance Corporation (icare) accepted liability for the injuries sustained to her bilateral knees on 14 October 2020.[1]

   [1] Application to Resolve a Dispute at pages 9-12.

5. On 28 August 2023, Ms Davey’s treating orthopaedic surgeon, Dr Roger Brighton, requested icare’s approval to proceed with left total knee replacement surgery.

6. On 22 September 2023, Employers Mutual Limited (EML), acting as the agent of icare, issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that the proposed left total knee replacement surgery was reasonably necessary treatment as a result of the injury sustained by Ms Davey in the course of her employment with Awaken on 14 October 2020 within the meaning of s 60 of the 1987 Act.[2]

   [2] Reply at pages 7-12.

7. On 6 November 2023, Ms Davey, through her lawyers, made a claim for the cost of the proposed left total knee replacement surgery.[3]

   [3] Application to Resolve a Dispute at page 25.

8. Ms Davey, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 6 December 2023 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming the costs of and ancillary to the left total knee replacement surgery proposed by Dr Brighton.

ISSUES FOR DETERMINATION

1. The parties agreed that the issue in dispute was whether the left total knee replacement surgery proposed by Dr Brighton was as a result of the left knee injury sustained by Ms Davey in the course of her employment with Awaken on 14 October 2020 within the meaning of s 60 of the 1987 Act.

Matters previously notified as disputed

1. The issues in dispute were notified in the dispute notice referred to above.

Matters not previously notified

1. No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

1. The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 13 February 2024. Mr John Gaitanis of counsel appeared for Ms Davey, instructed by Ms Reichelle Jackson, solicitor and Ms Kavita Balendra of counsel appeared for Awaken, instructed by Mr Daniel Fazzolare, solicitor.

2. During the conciliation phase:

   (a)    Awaken advised that it sought to rely only on the report by Dr Raymond Wallace dated 16 October 2023 attached to the Reply and not the reports by Dr Ron Haig, orthopaedic surgeon, dated 18 December 2021 and 7 February 2022;

   (b)    Awaken advised that injury to Ms Davey’s left knee on 14 October 2020 was not in dispute, and

   (c)    Awaken conceded that the left total knee replacement surgery proposed by Dr Brighton was reasonably necessary but not as a result of the accepted injury to Ms Davey’s left knee.

3. I am satisfied that the parties to the dispute understood 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.

4. Due to a technical issue, only a transcript was recorded of the proceedings. No audio was available. The MS Teams transcript was of poor quality. Accordingly, on 8 March 2024, I directed the parties to provide written submissions.

5. Awaken lodged written submissions in respect of the issue in dispute dated 25 March 2024.

6. Ms Davey lodged written submissions in respect of the issue in dispute dated 26 March 2024.

7. Awaken lodged written submissions in reply dated 2 April 2024.

EVIDENCE

Documentary evidence

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

   (a)    ARD dated 6 December 2023 and attached documents;

   (b)    Reply to ARD (Reply) dated 2 January 2024 and attached documents, excluding the reports by Dr Haig dated 18 December 2021 and 7 February 2022;

   (c)    Application to Admit Late Documents (AALD) lodged by Ms Davey dated 30 January 2024 and attached documents, and

   (d)    Reports by Dr Roger Brighton dated 28 August 2024.

Oral evidence

1. Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Narelle Davey’s evidence

1. In evidence there are statements by Ms Davey dated 28 November 2022,[4] 12 April 2023[5] and 6 December 2023.[6] I will now refer to the relevant parts of those statements.

   [4] ARD pages 1-3.

   [5] ARD pages 4-5.

   [6] ARD at pages 6-8.

2. Ms Davey stated that, on 7 August 2009, she injured her left knee when she fell over whilst skiing at a work conference. She sought treatment from her general practitioner and attended physiotherapy. She wore a brace on her left knee and used crutches for about two weeks. She was referred to Associate Professor Craig Waller, orthopaedic surgeon, who referred her for a left knee MRI scan and diagnosed an anterior cruciate ligament (ACL) tear.

3. Ms Davey stated that Associate Professor Waller recommended that she undergo an arthroscopic ACL reconstruction of her left knee. On 2 October 2009, Ms Davey underwent an ACL reconstruction on her left knee by Associate Professor Waller. She participated in an exercise program and returned to work.

4. Ms Davey stated that, in about July 2011, she experienced some pain in her left knee and returned to consult Associate Professor Waller. On 30 September 2011, she underwent an arthroscopy of her left knee to remove loose bodies by Associate Professor Waller. Following the latter mentioned surgery, she returned to her pre-injury duties at work and pre-injury activities. She may have experienced intermittent pain in her left knee thereafter but it did not impact on her ability to work or to perform her domestic duties.

5. Ms Davey stated that, in about 2016, she and her husband commenced a mobile food van business (Awaken) of which they were co-directors. Ms Davey described herself as a working director of Awaken whose role involved preparing food at home, driving the van with her husband and serving customers.

6. Ms Davey stated that, in about January 2018, she injured her right knee whilst performing lunges at the gym. On 29 January 2018, she consulted her general practitioner and was referred for a right knee X-ray and MRI scan and to Associate Professor Waller. She underwent the MRI scan and X-ray of her right knee on 1 February 2018 and consulted Associate Professor Waller on 7 February 2018. After reviewing the medical imaging, Associate Professor Waller diagnosed early patellofemoral osteoarthritis without any significant abnormalities. He advised that no surgery was required and recommended physiotherapy. The pain in her right knee resolved a few months later and she did not recall experiencing any further pain or undergoing any further treatment to her right knee after about June 2018.

7. Ms Davey stated that, on 14 October 2020, whilst performing food preparation work and moving from the stove to the sink in the kitchen, she twisted her left knee. She immediately felt pain in her left knee but despite this, continued to work. She thought it was a strain that would settle. She continued working and putting up with the pain until about January 2021 when she found that it was becoming harder to stand and walk due to the left knee pain.

8. Ms Davey stated that, on 7 January 2021, she consulted her general practitioner, Dr Stamatios Ktenas. She reported how she had injured her left knee on 14 October 2020 and reported on the gradual increase of pain in her left knee thereafter over time. Dr Ktenas issued her with a certificate of capacity and referred her for a left knee MRI scan. On 12 January 2021, Dr Ktenas reviewed the MRI scan and diagnosed a tear in the left post horn and meniscus. Dr Ktenas referred Ms Davey to Associate Professor Waller.

9. Ms Davey stated that, on 27 January 2021, she consulted Associate Professor Waller, who reviewed her left knee MRI scan and diagnosed a tear of the medial meniscus. He injected cortisone into her left knee and recommended that she undergo physiotherapy. She underwent physiotherapy as well as a number of platelet-rich plasma (PRP) injections into her left knee. Those treatments provided her with some relief.

10. Ms Davey stated that, on 9 August 2021, whilst undergoing physiotherapy at Mascot Physiotherapy for her left knee injury, she began to experience pain in her right knee whilst performing single leg knee extensions on a machine. Thereafter, she experienced severe pain and swelling in her right knee and walked with a limp because of it. She reported the incident to the physiotherapist and to the workers compensation claims manager, as well as to her general practitioner on 17 August 2021.

11. Ms Davey stated that, on 30 September 2021, she consulted Associate Professor Waller, who referred her for a right knee MRI scan. On 13 October 2021, she consulted Dr Roger Brighton, orthopaedic surgeon, who informed her that he would be taking over her care because Associate Professor Waller was on leave and moving towards retirement. Dr Brighton reviewed her MRI scans and X-ray reports. He recommended that she undergo a right hemi knee replacement and sought approval from icare. Liability for the proposed surgery was declined.

12. Ms Davey stated that, as the pain in her right knee was unbearable and as she was unable to work or perform her day-to-day activities due to pain, she proceeded with the proposed surgery and paid for it herself. She underwent a right hemi knee replacement by Dr Brighton on 22 April 2022. Following the surgery, she underwent physiotherapy and regularly consulted her general practitioner. She was off work for a period of time and eventually, made a graduated return to work on restricted hours and duties. Her hours and duties were increased in accordance with certificates of capacity issued by her treating doctor.

13. Ms Davey stated that, by about September 2022, she was in a fair bit of pain in her left knee but could not get it treated until she recovered from her right knee injury. Once the right knee symptoms settled and improved, her focus turned to her left knee.

14. Ms Davey stated that, in about April 2023, she began experiencing pain in the right knee and consulted Dr Brighton, who referred her for a right knee MRI scan. She again consulted Dr Brighton and, after reviewing the MRI scan, he diagnosed a stress fracture in the right knee that had not healed properly following surgery. She was advised to avoid weight-bearing for about three months so that the right knee could heal.

15. Ms Davey stated that, from about July 2023, she began to weight bear and walk on her right leg. She used crutches for extra support. She underwent physiotherapy. She had been experiencing pain in both knees but did not complain about the left knee or seek any treatment for it because her focus was on her right knee, which was much worse. She found herself trying to place more weight on her left leg when she walked with a limp because of the pain in her right knee. The symptoms in her left knee became worse when she was unable to walk on her right leg because she had to rely on her left leg for everything.

16. Ms Davey stated that, in about August 2023, she consulted Dr Brighton who referred her for a left knee MRI scan. After reviewing the MRI scan, Dr Brighton informed her that there had been a significant deterioration in her left knee compared to the scan in 2020. Dr Brighton recommended that she undergo a left total knee replacement. Liability for the proposed surgery was declined by EML on behalf of icare.

17. Ms Davey stated that she wanted to undergo the surgery proposed by Dr Brighton because she had been told it would improve her pain, mobility and hopefully, enable her to sufficiently recover so that she could return to work.

18. Ms Davey stated that, prior to the work injury, she had no problems with her knees despite having undergone surgery to her left knee previously. The left knee now gives way about three or four times per day and often feels quite stiff. When she stands for prolonged periods, she feels as though her knee pain extends into her lower back and becomes so painful that she is unable to stand. She has to take frequent breaks. She now needs to use a crutch to assist her with walking. She has difficulty ascending and descending stairs. She is only able to walk about 10m without a crutch. With the assistance of a crutch, she is able to walk about 50m before she needs to stop and rest.

19. Ms Davey stated that her husband has had to take over the task of personal grocery shopping and shopping for the business because, when she attempted to do so, she found it very painful. She could only last about 20 minutes before her left knee began to give way and cause debilitating pain. Since the work injury, she has struggled to drive for more than 15 minutes because of the discomfort and pain in both knees. She experiences difficulties completing cleaning tasks because she finds it too painful and physically challenging. She finds cooking more challenging to manage because she struggles to stand for prolonged periods and often, needs to sit down and rest.

20. Ms Davey stated that she worries about the future and the effect that her injuries will have on her. She wants to undergo the proposed surgery so that she can return to her normal duties at work and improve her overall quality of life.

Relevant pre-injury treatment

1. Dr Steve Breathour, general practitioner, of Perisher Valley Medical Centre referred Ms Davey to Associate Professor Waller, with whom she consulted on 28 August 2009. On 28 August 2009, Associate Professor Waller reported back to Dr Breathour noting that Ms Davey had injured her left knee whilst skiing at a work conference in Thredbo on 8 August 2009. He reported that X-rays of the left knee were normal but agreed with Dr Breathour that she had undoubtedly torn her ACL in the left knee. Ms Davey was referred for a left knee MRI scan to confirm the diagnosis. Associate Professor Waller recommended arthroscopic ACL reconstruction to stabilise the left knee once the diagnosis was confirmed.[7]

   [7] ARD at page 101.

2. On 16 September 2009, Ms Davey underwent a left knee MRI scan by Dr James Linklater, radiologist.[8]

   [8] ARD at page 100.

3. On 21 September 2009, Associate Professor Waller reported to Dr Breathour that the MRI scan confirmed a torn ACL, some bone bruising and a torn lateral meniscus. He opined that Ms Davey’s left knee had settled enough to proceed with the proposed ACL reconstruction.[9]

   [9] ARD at page 99.

4. On 2 October 2009, Associate Professor Waller performed a left knee arthroscopic ACL reconstruction on Ms Davey. Associate Professor Waller’s final diagnosis was one of a left ACL tear with some chondral damage. He noted that the knee was stable and that the prognosis was favourable, although, the chondral damage may progress.[10]

   [10] ARD at pages 97-98.

5. On 25 March 2010, Associate Professor Waller reported to Dr Breathour that Ms Davey was progressing well almost six months post ACL reconstruction of the left knee. The knee was stable with a satisfactory range of motion. He encouraged Ms Davey to increase her level of activity.[11]

   [11] ARD at page 96.

6. On 15 July 2011, Ms Davey underwent a left knee MRI scan by Dr Jennie Noakes, radiologist, on the referral of Associate Professor Waller.[12]

   [12] ARD at page 94.

7. On 19 July 2011, Associate Professor Waller reported to Dr Breathour that Ms Davey had consulted him recently advising that she had no further problems of instability following the reconstruction but had experienced some pain in the joint. He noted that the left knee was stable and dry and that Ms Davey had a full range of motion. The MRI scans demonstrated a loose chondral body in the lateral gutter of the joint and some chondral wear in the medial and patellofemoral compartments, which was consistent with her previous arthroscopy. The ACL graft was intact. Associate Professor Waller opined that Ms Davey had a loose body in the left knee and that she may also have some scar tissue causing some discomfort. He recommended an arthroscopy to remove the loose body and to deal with any scar tissue.[13]

   [13] ARD at page 93.

8. On 30 September 2011, Associate Professor Waller performed a left knee arthroscopy, patellar chondroplasty, removal of loose bodies and division of adhesions on Ms Davey. Associate Professor Waller’s final diagnosis was that of an intact ACL graft; patellofemoral chondral damage; and scar tissue adhesions.[14]

   [14] ARD at pages 90-91.

9. On 1 October 2014, Ms Davey consulted Associate Professor Waller complaining of a two month history of left-sided anterior knee pain with a subjective feeling of instability, particularly on stairs. There had not been any recent injuries. He reassured Ms Davey that her ACL graft was intact. He opined that she had patellofemoral pain with a background of some patellar chondral damage and referred her for a left knee MRI scan.[15]

   [15] ARD at page 88.

10. On 31 January 2018, Ms Davey consulted Associate Professor Waller on the referral of Dr Ktenas complaining of the development of pain in the right knee after a heavy workout in the gym the previous week. It was noted that the workout involved lunges, push-ups and other exercises, after which, Ms Davey developed pain and swelling in the right knee in the medial aspect of the joint. The left knee remained satisfactory despite the early osteoarthritis noted at her previous arthroscopy. Associate Professor Waller opined that Ms Davey had early osteoarthritis in the right knee that had been aggravated by the recent heavy workout in the gym. However, as he could not rule out a tear of the medial meniscus, he would review her again after a right knee MRI scan.[16]

    [16] ARD at page 87.

1. On 1 February 2018, Ms Davey underwent right knee X-rays and MRI scans by Dr Sim, radiologist.[17]

   [17] ARD at pages 83-85.

2. On 7 February 2018, Associate Professor Waller reported to Dr Ktenas that Ms Davey’s MRI scans confirmed cartilage wear across the right patellofemoral joint and a small full-thickness chondral defect on the lateral femoral condyle. The menisci were intact. Surgery was not required. Ms Davey had patellofemoral dysfunction and pain with early patellofemoral osteoarthritis as a result of long-standing lateral patellar maltracking, appropriately treated conservatively with a course of physiotherapy and exercises.[18]

   [18] ARD at page 88.

3. On 16 October 2018, Ms Davey reported to Dr Ktenas that she had slipped down stairs whilst working from home and had tenderness in her left medial collateral ligament (MCL) as well as low back pain.[19] Dr Ktenas arranged for Ms Davey to undergo a left knee MRI scan which demonstrated left medial compartment chondral wear and that the left knee ACL graft was intact.[20]

   [19] ARD at page 131.

   [20] ARD at page 131.

The treating medical evidence

1. On 7 January 2021, Ms Davey consulted Dr Ktenas, who noted in Ms Davey’s Botany Medical Centre clinical records (the clinical records) that she reported a left knee twisting injury in her kitchen whilst moving from the stove to the sink in October 2020. She had persevered with chiropractic treatment and Pilates rubs without improvement. Dr Ktenas referred Ms Davey for a left knee MRI scan and issued a certificate of capacity.[21]

   [21] ARD at page 137.

2. On 12 January 2021, Ms Davey underwent a left knee MRI scan by Dr Sarah Morris, radiologist. The MRI scan revealed a complete radial tear of the posterior horn of the medial meniscus adjacent to the posterior tibial route insertion; medial capsular-ligamentous sprain and inflammation; previous ACL reconstruction with a tibial tunnel cyst and adjacent oedema; medial femorotibial compartment chondromalacia; non-specific joint effusion with synovitis and debris; and increased signal at the anterior tibial attachment of the lateral meniscus that may reflect further degeneration and surface fraying.[22]

   [22] ARD at pages 78-80.

3. Later on 12 January 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that the MRI scan was reviewed with Ms Davey. Dr Ktenas referred Ms Davey to Associate Professor Waller.[23]

   [23] ARD at page 137.

4. On 27 January 2021, Associate Professor Waller reported to Dr Ktenas that Ms Davey had consulted him.[24] He confirmed that Ms Davey had undergone an ACL reconstruction of the left knee under his care in 2009 and had done well following the procedure without further problems with instability of the left knee. He noted that Ms Davey worked from home and cooked in the kitchen for her husband who ran a coffee cart. He also noted that Ms Davey sustained a twisting injury to her left knee in the kitchen at home in October 2020. She had been experiencing pain in the medial, lateral and posterior aspects of the left knee. Treatment had included some laser light therapy with her chiropractor. On examination, Associate Professor Waller observed that Ms Davey was overweight and limping; range of motion of the left knee was 2° to 130°; there was medial joint line tenderness; the cruciate and collateral ligaments were stable; and the ACL graft was clinically intact. He reviewed the recent MRI scan and concluded that it demonstrated a significant medial compartment osteoarthritis and a degenerative tear of the medial meniscus. Associate Professor Waller opined that Ms Davey had aggravated her arthritic left knee and recommended conservative treatment, which included a cortisone injection at the time of the consultation.

   [24] ARD at page 77.

5. On 25 February 2021, Associate Professor Waller reported to Dr Ktenas that Ms Davey had consulted him that day.[25] Ms Davey reported no improvement in symptoms following the cortisone injection in January 2021. She had made a slight improvement in symptoms with her supervised physiotherapy program. She complained of ongoing anterior and medial pain in the left knee without any episodes of locking. The knee was stable. Amongst other things, Associate Professor Waller recommended PRP injections into the left knee.

   [25] ARD at page 76.

6. On 2 March 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she continued to undergo physiotherapy to her left knee and was awaiting review by Associate Professor Waller.[26]

   [26] ARD at page 138.

7. On 21 April 2021, Ms Davey underwent her first PRP injection into the left knee.[27] She had, at least, another two PRP injections into the left knee, the third taking place on 5 May 2021.[28]

   [27] ARD at page 75.

   [28] ARD at page 74.

8. On 1 June 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was much improved by the PRP injections. She continued to undergo physiotherapy and would only consult Associate Professor Waller if needed.[29]

   [29] ARD at page 139.

9. On 17 August 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she had complained of her right knee pain being greater than her left knee pain.[30]

   [30] ARD at page 140.

10. On 1 September 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was suffering from ongoing knee pain.[31]

    [31] ARD at page 142.

11. On 8 September 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was suffering from ongoing right knee pain when part of a running group at physiotherapy. She only took part in brisk walking. Ms Davey was keen to consult Associate Professor Waller in respect of her right knee and Dr Ktenas made the referral.[32]

    [32] ARD at page 142.

12. On 30 September 2021, Associate Professor Waller reported to Dr Ktenas that Ms Davey had consulted him that day.[33] He noted that Ms Davey had responded reasonably well to both a course of PRP injections and ongoing physiotherapy. On 9 August 2021, whilst doing some rehabilitation at a physiotherapy practice, she strained her right knee performing a resisted leg extension. She developed pain around the patellofemoral joint and subsequently, swelling in the right knee. Symptoms had persisted. X-rays of both knees demonstrated loss of medial joint space consistent with medial compartment osteoarthritis. Associate Professor Waller opined that Ms Davey had acute traumatic patellar tendinitis on a background of medial compartment osteoarthritis in the right knee. He referred her for a right knee MRI scan and further physiotherapy.

    [33] ARD at page 73.

13. On 13 October 2021, Dr Brighton reported to Dr Ktenas that Ms Davey had consulted him that day because Associate Professor Waller was on leave and moving towards retirement.[34] He expected that he would be taking over Ms Davey’s care. Dr Brighton noted that Ms Davey had sustained a work-related left knee injury some years earlier and went on to an ACL reconstruction. She experienced a flare-up of left knee symptoms in early 2021 for which she had a course of PRP injections with good effect. However, whilst being treated for the left knee and performing exercise therapy, she developed acute pain and swelling in her right knee that had not resolved. Dr Brighton opined that it was evident from her X-rays that there was severe loss of the cartilage surface in the medial compartment (advanced osteoarthritis) which had been stirred up by her exercise therapy. He opined that it was unlikely that non-operative measures would be successful and he recommended that she move straight on to a medial unicompartmental knee arthroplasty which would give her a reliable and lasting relief of her severe medial knee pain. He stated that he would seek insurer approval for the proposed surgery. However, the evidence is that liability for the proposed surgery was declined.

    [34] ARD at page 72.

14. On 7 November 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records, amongst other things, that her knee pain was worsening and that Dr Brighton had recommended a right unicompartmental knee replacement.[35]

    [35] ARD at page 151.

15. On 30 November 2021, Ms Davey consulted Dr Ktenas, who noted in the clinical records that her right knee pain was ongoing and that she awaited approval for the surgery proposed by Dr Brighton.[36]

    [36] ARD at page 152.

16. On 13 January 2022, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was suffering bilateral knee pain, the right knee being “in sympathy” to the left knee. Ms Davey still awaited approval of a right hemi arthroplasty. Dr Ktenas referred Ms Davey to a pain clinic.[37]

    [37] ARD at page 153.

17. On 18 February 2022, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was suffering bilateral knee pain. She had not yet attended the pain clinic.[38]

    [38] ARD at page 154.

18. On 23 March 2022, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was suffering right knee pain and was booked in for surgery by Dr Brighton on 12 April 2022.[39]

    [39] ARD at page 155.

19. On 12 April 2022, Ms Davey underwent a right medial unicompartmental knee replacement by Dr Brighton.[40]

    [40] ARD at pages 198-199.

20. On 1 June 2022, Ms Davey consulted Dr Ktenas, who noted in the clinical records that she was walking better and no longer required a walking stick. The surgical wound had healed well.[41]

    [41] ARD at page 195.

21. On 6 June 2022, Dr Brighton reported to Dr Ktenas that Ms Davey had consulted him that day. Dr Brighton reported that Ms Davey’s operation went well, as did her early recovery in hospital. She had gone from strength to strength since discharge with the continuing assistance of her local physiotherapist. The surgical wound was well healed with minimal swelling. Range of movement was already 0° to 120°, which he opined was outstanding. Dr Brighton noted that Ms Davey continued to work on optimising strength and endurance. She was already back at work and would hopefully be able to gradually increase hours and duties to normal over the coming weeks.[42]

    [42] ARD at page 201.

22. On 28 August 2023, Dr Brighton reported to Dr Ktenas that Ms Davey had attended his office that day with recent MRI scans of her knees. Ms Davey informed him that she felt her right knee symptoms had improved but that improvement had now plateaued. She felt increased pain in the left knee which she attributed to recently favouring the right knee.

23. In respect of the recent MRI scans, Dr Brighton observed as follows:

    “In the left knee, it is evident that she now has severe loss of articular cartilage in the inner compartment, or severe osteoarthritis. There is [sic] some early changes laterally and behind the patella. Her ACL graft from 10 years ago remains intact. A flareup of symptoms on that side some 2 years ago was treated successfully with a course of platelet rich plasma injections (PRP), but her condition is now beyond nonoperative measures and I have recommended total knee replacement.

    On the right side, the images are a bit degraded by the metal implant, but the UKA (unicompartmental knee replacement) remains well fixed in good position. There is some progress of degenerative change at some multi-femoral joint now with some less severe signs in the lateral compartment. Intraosseous oedema seems to be settling.”[43]

    [43] Dr Roger Brighton's report dated 28 August 2023 at page 1.

24. Dr Brighton noted that Ms Davey felt unable to carry on the way she was. They both felt non-operative measures were unlikely to help and she understood his recommendation to proceed with a left total knee replacement. Dr Brighton opined that once she had a reliable left knee, he was hopeful that this would allow continuing improvement on the right side, although the recent MRI scan indicated that she may eventually need to proceed with a total replacement on the right as well.

25. On 28 August 2023, Dr Brighton wrote to icare seeking approval to proceed with left total knee replacement surgery on Ms Davey. He enclosed a copy of his report to Dr Ktenas dated 28 August 2023 and confirmed that he had recommended the proposed procedure as appropriate treatment for Ms Davey’s injury.

26. The evidence is that liability for the proposed surgery was declined.

The forensic medical evidence

Dr James Bodel: 2 June 2022

1. On 2 June 2022, Ms Davey consulted Dr James Bodel, orthopaedic surgeon, at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 2 June 2022.[44] I will now refer to the relevant parts of that report.

   [44] ARD at pages 26-32.

2. Dr Bodel summarised Ms Davey’s injuries as an injury to the left knee on 14 October 2020 and a consequential injury to the right knee. Awaken did not dispute these injuries.

3. Dr Bodel took the following injury related history:

   “Ms Davey states that she suffered a twisting injury to her left knee during the normal course of her day's work on 14 October 2020. She was doing food preparation work when she twisted her left knee. The patient was aware of immediate pain however, she thought it would settle.

   The patient states that she ‘put up with the pain’ until about January 2021 when she consulted her local doctor, who arranged x-rays and an MRI scan. She was referred to see Professor Waller, an Orthopaedic Surgeon, who had previously operated on that knee and performed an anterior cruciate ligament reconstruction in about 2009 or 2010 following an injury. Her left knee symptoms slowly improved. She did however, have an arthroscopy about a year later, which improved the function of her knee. At the time that she commenced work in the mobile food van business, the left knee was near normal and not requiring any specific treatment.

   Dr Waller reported that she had some arthritis in the left knee, which was initially treated with cortisone. The patient states that these injections did not help. She was then treated with PRP injections, which were very helpful after a period of about three months. She underwent a rehabilitation exercise program to strengthen the quadriceps muscles, which also helped.

   The patient reported that she injured the right knee on 09 August 2021 during a physiotherapy exercise rehabilitation treatment, which was part of the program to rehabilitate the left knee. The injury occurred during a single leg knee extension activity on a machine and resulted in increasing pain and swelling in the right knee. The patient states that she reported the matter.

   Ms Davey indicates that she consulted her General Practitioner, who ordered an MRI scan and referred her to Dr Roger Brighton an Orthopaedic Surgeon, as Dr Waller had retired. Dr Brighton identified significant arthritic change in the medial compartment of the right knee and reported that the only viable treatment option was a unicompartmental knee replacement.

   The patient indicates that the insurer initially accepted liability for the right knee and subsequently declined liability for both knees, when the unicompartmental knee replacement was recommended.

   Ms Davey states that the surgery on the right knee was performed by Dr Brighton on 12 April 2022. At this early stage, nearly two months after the surgery, she is making steady progress. She is still having physiotherapy and uses a Canadian crutch when outdoors and is due to see Dr Brighton soon.

   The patient states that her left knee is functioning reasonably well and she has not had further treatment at this stage. However, within the next three to five years, knee replacement surgery on the left knee may well be required.”[45]

   [45] ARD at pages 27-28.

4. Dr Bodel recorded Ms Davey’s current complaints as pain in both knees, with the left knee functioning reasonably well with some anteromedial knee pain on the left side. He also noted that she was recovering from recent unicompartmental right knee replacement surgery and noted the surgical scarring related thereto.

5. In respect of current and proposed treatment, Dr Bodel recorded that Ms Davey was taking two Panadol tablets four times per day; one Voltaren tablet three times per day; occasional slow-release 50mg Palexia tablets; and undergoing intensive physiotherapy. He also noted that she used a Canadian crutch when outdoors.

6. In respect of Ms Davey’s social history and activities of daily living, Dr Bodel reported that she worked very long hours and did not have any time for sport or leisure activities. She stated that she could drive an automatic motor vehicle and that her driving tolerance was about 30 minutes. She continued to struggle with household maintenance and cleaning activities.

7. On examination, Dr Bodel observed that Ms Davey was 166cm in height and weighed 113kg. She used a Canadian crutch in her right arm to assist her with walking. She could only walk a short distance in Dr Bodel’s office without the Canadian crutch. Dr Bodel recorded the range of movement in each knee. The active range of motion in the right knee on extension
   was -5°. The active range of motion in the left knee on extension was 0°. The active range of motion in the right knee on flexion was 100°. The active range of motion in the left knee on flexion was 130°. Dr Bodel observed that the ligaments in the right knee were stable and that there was a very mild anterior drawer in the left knee at 90° of flexion and a mild Lachman’s test at 30° of knee flexion on the left side.

8. Dr Bodel observed that the treatment reports of Associate Professor Waller were consistent with the medical management of Ms Davey’s left knee. Further, Ms Davey’s general practitioner clinical records were consistent with the ongoing management of her injuries and the treatment reports of Dr Brighton were also consistent with his recommendation for treatment.

9. Dr Bodel opined that the initial injury was to Ms Davey’s left knee on 14 October 2020 and that she subsequently had a consequential injury to the right knee whilst undertaking physiotherapy-based exercises for the management of the accepted left knee injury. He further opined that employment was the main substantial contributing factor to the injury to the left knee and the injury to the right knee.

10. In respect of prognosis, Dr Bodel opined that it remained guarded due to the pathology in both knees. Ms Davey had been left with an ongoing permanent impairment as a result of her injuries.

Dr James Bodel: 10 November 2022

1. On 10 November 2022, Ms Davey again consulted Dr Bodel at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 10 November 2022.[46] I will now refer to the relevant parts of that report.

   [46] ARD at pages 33-39.

2. Dr Bodel confirmed the detailed injury related history referred to in his previous report.

3. Dr Bodel recorded Ms Davey’s current complaints as pain in both knees; an inability to kneel; an inability to squat; and mildly complicated surgical scarring over the front of the right knee.

4. In respect of current and proposed treatment, Dr Bodel recorded that Ms Davey was taking Panadol, and slow-release 50mg Palexia tablets. She was undergoing physiotherapy and home-based exercises.

5. In respect of Ms Davey’s social history and activities of daily living, Dr Bodel reported that she worked very long hours and did not have any time for sport or leisure activities. She stated that she could drive an automatic motor vehicle and that her driving tolerance was about one hour. She continued to struggle with household maintenance and cleaning activities for which she was receiving some assistance.

6. On examination, Dr Bodel observed that Ms Davey was 166cm in height and weighed 113kg. She was now able to walk without a Canadian crutch. Dr Bodel recorded the range of movement in each knee. The active range of motion in the right knee on extension was 0°. The active range of motion in the left knee on extension was 0°. The active range of motion in the right knee on flexion was 100°. The active range of motion in the left knee on flexion was 130°. Dr Bodel observed that the ligaments were stable and that there was a very mild anterior cruciate ligament injury when testing the anterior drawer on the left knee where there had been the previous knee reconstruction. However, there was also a mild positive Lachman’s test at 30° of knee flexion on the left side and no ligamentous laxity on the right.

1. Dr Bodel again observed that Ms Davey’s general practitioner clinical records were consistent with the ongoing management of her injuries.

2. Dr Bodel confirmed his opinion that the initial injury was to Ms Davey’s left knee on 14 October 2020 and that she subsequently had a consequential injury to the right knee whilst undertaking physiotherapy-based exercises for the management of the accepted left knee injury. He also confirmed his opinion that employment was the main substantial contributing factor to the injury.

3. Dr Bodel opined that, in the short to medium term of three to five years, Ms Davey would require a knee replacement on the left side as well. However, later in his report, Dr Bodel stated that there was no prospect of surgery in the left knee in the foreseeable future. Dr Bodel further opined that, at some later stage, she would also need to convert the unicompartmental knee replacement on the right side to a total knee replacement, which could hopefully be deferred for about 10 years.

4. In respect of prognosis, Dr Bodel opined that Ms Davey’s prognosis had been improved by the right knee surgery. However, prognosis was still guarded overall because of the pathology.

5. Dr Bodel opined that Ms Davey had been left with a permanent impairment in both knees.

Dr Raymond Wallace: 16 October 2023

1. On 10 October 2023, Ms Davey consulted Dr Raymond Wallace, orthopaedic surgeon, at the request of Awaken’s lawyers. In evidence, there is a report by Dr Wallace dated 16 October 2023.[47] I will now refer to the relevant parts of that report.

   [47] Reply at pages 30-39.

2. Dr Wallace took a past history that included Ms Davey’s previous left knee injury whilst snow skiing in 2009. The history was consistent with the evidence. In regard to her right knee, he took a history that Ms Davey suffered no previous injury at the joint. She was reviewed by her general practitioner in 2018 complaining of right knee pain after doing lunges at the gym but underwent no treatment at the time.

3. Dr Wallace took the following detailed history of Ms Davey’s work-related injury on 14 October 2020:

   “Ms Davey is 49 years of age and has been employed as a Working Director in the company of Awaken Coffee Van Pty Ltd from early 2016. In 2020 she was employed on a fulltime basis working 40 hours per week. Her work duties involved preparing and cooking food for the coffee van at home for three hours in the morning and two hours every afternoon. She was also required to shop for food products as well as do office and accounting work.

   Her husband operated the coffee van.

   In 2020 she was also working secondary employment as a BAS Agent working from home between 15 and 30 hours per week doing office and computer work. She was also working tertiary employment as a Thermomix Consultant doing demonstrations for two hours at a time twice a week as well as taking one hour to prepare for each demonstration.

   She noted the onset of pain at her left knee whilst preparing and cooking food at her kitchen at home on 14 October 2020. At that time she was standing at the stove when she twisted through 180° to access to go to [sic] the bench when she noted the onset of pain at her left knee. She did not slip or fall at the time of her symptom onset.

   She applied an ice pack at her left knee but did not seek medical review nor undergo treatment.

   Some three months later in January 2021 she was reviewed by her Local Medical Officer, Dr Ktenas at Botany complaining of ongoing left knee pain. She was referred for MRI investigation at her left knee which was carried out on 12 January 2021 and showed evidence of a tear involving the posterior horn of the medial meniscus with previous ACL reconstruction. She was referred for physiotherapy. She was referred for specialist review with Dr Waller, Orthopaedic Surgeon at Darlinghurst who ordered a corticosteroid injection at the left knee which failed to relieve her pain. She subsequently underwent three PRP injections at the joint after which her left knee pain settled over the following three months. She then recommenced physiotherapy which continued until September 2022.

   In May 2023 she recommenced physiotherapy treatment with a new therapist.

   On 28 August 2023 she was reviewed by Dr Brighton, Orthopaedic Surgeon at Darlinghurst who recommended operative intervention in the form of left total knee replacement. Ms Davey is currently attending physiotherapy twice a week and using medications of Meloxicam, Panadeine Forte and CBD oil. She is now awaiting workers' compensation insurer approval for her proposed left knee surgery.

   Ms Davey claims to have suffered an injury at her right knee whilst undergoing rehabilitation for her left knee injury at the physiotherapist on 9 August 2021. At that time she was doing a resisted right knee extension when she noted the onset of pain at her right knee. She was referred for physiotherapy. She was later reviewed by Dr Brighton, Orthopaedic Surgeon who recommended operative intervention. She was admitted to hospital in April 2022 and underwent medial unicompartmental replacement at the right knee as a private patient after her workers' compensation insurer declined approval for this procedure. In the post-operative period she was referred for physiotherapy which continued from April 2022 until September 2022. She subsequently noted increasing pain at the right knee and was diagnosed with a stress fracture at the right tibia in May 2023. She subsequently mobilised non-weight bearing with two crutches. She is currently continuing her physiotherapy twice a week and using medication of Meloxicam, Panadeine Forte and CBD oil.”[48]

   [48] Reply pages 31-32.

4. Dr Wallace recorded Ms Davey’s current complaints. In respect of the left knee there was no current pain at the joint. Ms Davey noted swelling at the joint but no locking. There was intermittent giving way at the joint with episodes of pain on a daily basis. She noted stiffness in her left knee. In respect of the right knee, she noted constant aching pain at the lateral aspect of the joint, worse with repetitive activity or maintaining one position. The pain was relieved by medication, an ice pack, hot bath or exercising on a stationary bicycle. There was no swelling or locking at the right knee. She complained of intermittent giving way at the right knee with episodes of pain and ongoing stiffness at the joint.

5. In respect of Ms Davey’s current activities, Dr Wallace noted that she continued to work in her company on part-time light duties four hours per day, five days per week with standing and lifting as tolerated. Work duties mainly involved supervising co-workers and office duties. She was able to continue with her secondary employment as a BAS agent at her pre-injury duties and hours. She had been able to return to some work in her tertiary employment as a Thermomix consultant doing telephone work two hours per week but no demonstrations. Ms Davey’s sleep was not disturbed if she used CBD oil. She had difficulty driving a motor vehicle for more than 15 minutes. She had difficulty with household tasks involving cleaning the floor but was able to do some cooking. She currently self-funded a housekeeper on a weekly basis for four hours at a time. She was able to do some gardening. She had been unable to walk her dog or resume her pre-injury level of shopping.

6. On examination, Dr Wallace observed that Ms Davey was 166cm tall and weighed 116kg. She walked with the aid of one Canadian crutch.

7. Examination of the left knee revealed a 4cm scar at the anteromedial aspect of the upper tibia that had healed to a fine white line and was minimally visible. There were healed arthroscopy portals. There was an active range of movement of the left knee of 5° to 95° flexion. There was no effusion at the joint. There was tenderness at the medial joint line but no retropatellar crepitus. The ligaments were stable.

8. Examination of the right knee demonstrated a 13cm anteromedial longitudinal scar that was 3mm and brown in colour with some crosshatching and contour defect that was moderately visible. There was an active range of movement of the right knee of 10° to 95° flexion. There was no effusion at the joint. There were no tender areas but there was a palpable retropatellar crepitus. The ligaments were stable.

9. Dr Wallace observed that Ms Davey walked with some 10° fixed flexion of the knees bilaterally. Knee alignment showed 5° of valgus bilaterally.

10. Dr Wallace reviewed and summarised the radiological investigations in evidence, namely, the left knee MRI scan dated 12 January 2021, the right knee X-ray dated 27 September 2021 and the right knee MRI scan dated 7 October 2021.

11. Dr Wallace diagnosed Ms Davey as having suffered a minor aggravation of a pre-existing degenerative osteoarthritis in the medial compartment of the left knee on 14 October 2020, which had now resolved.

12. In respect of causation, Dr Wallace explained as follows:

    “Ms Davey's work-related left knee injury of 14 October 2020 has resolved. At that time at worst she suffered a minor aggravation of pre-existing degenerative osteoarthritis involving the medial compartment of the left knee which would have settled within a month of this incident. The mechanism of injury she describes of merely standing in her kitchen and turning around to the bench is not consistent with being the cause of any significant left knee pathology. She did not fall at the time of this work incident.

    Importantly, she did not require medical review nor treatment at that time and did not subsequently seek review with her Local Medical Officer in regard to her left knee symptoms until January 2021 some three months later.

    She underwent MRI investigation of the left knee on 12 January 2021 which showed evidence of previous anterior cruciate ligament graft as well as degenerative osteoarthritis particularly affecting the medial compartment where there is grade 4 chondromalacia of the weight bearing surface of the medial femoral condyle. Her findings on MRI investigation were consistent with degenerative osteoarthritis involving the medial compartment of the left knee. This study was a work-related left knee injury of 14 October 2020 and would have settled within a month of this incident.

    Her subsequent left knee symptoms were due to pre-existing degenerative osteoarthritis at the joint which was constitutional in origin and unrelated to her employment. Her employment with Awaken Coffee Van Pty Ltd is not a substantial contributing factor to any current left knee condition.

    In regard to her right knee condition, she did not note the onset of right knee pain until carrying out physiotherapy in August 2021 some ten months after the index work injury. At that time her work-related left knee injury had resolved. Ms Davey underwent MRI investigation of the right knee in October 2021 which showed evidence of significant tricompartmental osteoarthritis at the joint. Her current right knee symptoms are due to pre-existing degenerative tricompartmental osteoarthritis at the right knee, which is constitutional in origin and unrelated to her employment. Her employment with Awaken Coffee Van Pty Ltd is not a substantial contributing factor to any current right knee condition.”[49]

    [49] Reply at pages 35-36.

13. Dr Wallace reported that Ms Davey exhibited no pain behaviour at the time of review on 10 October 2023.

14. After having reviewed Dr Brighton’s request for left total knee replacement surgery, Dr Wallace opined that the proposed surgery did not relate to Ms Davey’s workplace incident on 14 October 2020, which had long since resolved. Ms Davey’s need for further treatment of the left knee was related to a pre-existing condition of degenerative osteoarthritis of the joint, which was unrelated to her employment. Ms Davey does not require surgical intervention at the left knee as a result of any work-related condition at the joint.

Dr James Bodel: 6 November 2023

1. On 6 November 2023, Dr Bodel provided a supplementary report at the request of Ms Davey’s lawyers after having reviewed Dr Wallace’s report dated 16 October 2023, Associate Professor Waller's clinical notes, Dr Brighton’s clinical notes and the EML dispute notice dated 3 November 2023.[50] I will now refer to the relevant parts of that report.

   [50] ARD at pages 40-42.

2. Dr Bodel agreed that, medically, post-traumatic osteoarthritic change in the left knee is the diagnosis. However, he disagreed with Dr Wallace that the aggravation was minor. Dr Bodel opined that, over time, there had been considerable aggravation, acceleration, exacerbation and deterioration to that underlying disease process caused by the event at work on 14 October 2020. Such aggravation, acceleration, exacerbation and deterioration to that underlying disease process was unresolved and ongoing. The clinical notes of Associate Professor Waller and Dr Brighton also confirmed the pathology and the need for treatment.

3. Dr Bodel further opined as follows:

   “The claimant does have pathology in the left knee which is due to degenerative change in that knee. The ‘injury’ in a legal sense, however, is aggravation, acceleration, exacerbation and deterioration of that ‘pathology’ and the work event is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of that disease process.

   It is probable that a total knee replacement will be required at some stage in the future. It is difficult to determine the exact timing of when that will be required, but it would be my best estimate that it would be within the next three to five years.

   …

   It will be reasonable and necessary when it needs to be done, within the next three to five years. It is an inevitable treatment protocol for this injury.”[51]

   [51] ARD at page 41.

SUBMISSIONS

1. The parties provided the written submissions referred to above. I will provide a brief outline of the parties’ submissions below.

Awaken’s submissions

1. Ms Davey underwent a previous ACL repair on her left knee in 2009 following an injury that occurred whilst she was skiing. Surgery was performed by Associate Professor Waller. Apparently, Ms Davey had a good recovery from the surgery and returned to full-time employment.

2. There is no dispute as to how the accepted injury occurred, that is, Ms Davey suffered a twisting injury to the left knee whilst moving from the stove to the sink in the kitchen whilst preparing and cooking food.

3. Ms Davey did not immediately seek medical attention. It was not until January 2021 that she was examined by her general practitioner following ongoing left knee pain. A left knee MRI scan was carried out on 12 January 2021 which demonstrated evidence of a tear of the posterior horn of the medial meniscus with previous ACL reconstruction. Ms Davey underwent physiotherapy and was referred to Associate Professor Waller for specialist review.

4. On 9 August 2021, during the course of receiving treatment for her left knee, Ms Davey suffered a consequential injury to the right knee. The consequential injury was not in dispute.

5. Awaken’s denial of liability for the proposed treatment was based on the opinion of Dr Wallace. Dr Wallace opined that Ms Davey suffered a minor aggravation of pre-existing degenerative osteoarthritis of the medial compartment of the left knee, which had now resolved. Dr Wallace provided the basis of his opinion under the subheading “causation”.[52]

   [52] Reply at page 35-36.

6. Dr Wallace went on to opine that Ms Davey was suffering from a degenerative osteoarthritis at the bilateral knees prior to her work incident of 14 October 2020.[53] Dr Wallace’s opinion was supported in Ms Davey’s statement which noted that she had been diagnosed with an osteoarthritic condition of the right knee in 2018.[54]

   [53] Reply at page 38 at [7].

   [54] ARD at page 4 at [6].

7. Dr Wallace’s opinion that, Ms Davey’s left knee injury was minor and had resolved, largely accorded with Dr Bodel’s consideration of the progress of her left knee injury which was described as functioning reasonably well with some anteromedial knee pain on the left side.[55]

   [55] ARD at page 28.

8. Dr Wallace’s opinion had some support in Ms Davey’s own statement as well as, to a somewhat more limited extent, the report of Dr Bodel.

9. Accordingly, the claim for the proposed surgery is not reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.

Ms Davey’s submissions

1. The only issue in dispute was whether the proposed surgery is reasonably necessary as a result of the accepted injury to Ms Davey’s left knee.

2. It was accepted that Ms Davey sustained an earlier injury to the left knee on 7 August 2009 whilst skiing. An ACL reconstruction of her left knee occurred on 2 October 2009. An arthroscopy was performed by Dr Waller on 30 September 2011. Thereafter, Ms Davey may have experienced intermittent pain in the left knee but she was able to continue working and perform her domestic duties until she suffered the subject injury at work on 14 October 2020.

3. On 16 October 2018, Ms Davey reported to Dr Ktenas that she had a slip at home and had tenderness in her MCL as well as low back pain.[56]

   [56] ARD at page 131.

4. On 7 January 2021, Dr Ktenas took a history that Ms Davey suffered a left knee twisting injury on 14 October 2020 during the course of her employment. Ms Davey’s evidence was that she felt immediate pain in her left knee when she twisted it on 14 October 2020. However, she continued to work despite the pain as she thought, at the time, it was a strain and would settle. She continued working and put up with the pain until about January 2021 when it became hard to stand and walk due to the pain in her left knee. At no time after 2011 and prior to 14 October 2020, was Ms Davey in such pain and disability.

5. On 27 January 2021, Ms Davey told Associate Professor Waller that she was experiencing pain in her left knee and was walking with a limp. Associate Professor Waller reviewed the left knee MRI scan dated 12 January 2021 which disclosed a high-grade radial tear through the posterior horn adjacent to the tibial attachment; possibly a few far peripheral fibres that were not completely torn; separation of the inner portions of the meniscus by less than 5mm; and mild extrusion of the meniscal base at the medial joint line. Associate Professor Waller opined that Ms Davey had aggravated her arthritic knee.

6. In February 2021, Associate Professor Waller reported that Ms Davey reported no improvement in symptoms following the cortisone injection the previous month and slight improvement in symptoms with a supervised physiotherapy program but that she continued to experience anterior and medial pain in the left knee.

7. The treatment and disability referred to above did not reflect that the injury to Ms Davey’s left knee on 14 October 2020 was “minor” as suggested by Dr Wallace. Ms Davey’s evidence was that, at the time of the subject injury, she did not have any problems with her knees despite previous surgery. The unchallenged evidence is that, in about August 2023, Ms Davey was told by Dr Brighton that a review of the recent MRI scan of the left knee demonstrated that there had been significant deterioration compared to the scan in 2020 and that he had recommended she undergo a left knee replacement.

8. In Dr Bodel’s report dated 2 June 2022, he took a history that, following the arthroscopy of 2011, the function of Ms Davey’s left knee improved, she commenced work in the mobile food business and her left knee was near-normal and did not require any specific treatment. Dr Bodel reported that Ms Davey had arthritis in the left knee diagnosed by Dr Waller and that her left knee settled reasonably well with PRP injections. He opined that Ms Davey would need to consider a left total knee replacement at some later stage.

9. In Dr Bodel’s report dated 10 November 2022, he confirmed that following the arthroscopy in 2011, Ms Davey had recovered sufficiently to be able to undertake the work in the mobile food business and that she had described her left knee is being near-normal and that she did not require any specific treatment until the subject injury on 14 October 2020. Dr Bodel opined that in the short to medium term of three to five years, Ms Davey would require a knee replacement on the left side.

1. In Dr Bodel’s supplementary report dated 6 November 2023, he considered the reports of Dr Wallace, Associate Professor Waller and Dr Brighton. Dr Bodel disagreed with Dr Wallace’s opinion that the aggravation to Ms Davey’s left knee was minor. He considered that, over time, there had been considerable aggravation, acceleration, exacerbation and deterioration to the underlying disease process which was caused by the event at work on 14 October 2020 and that it was unresolved and ongoing.

2. Dr Bodel accepted that the pathology to the left knee was degenerative in nature but that was because of an aggravation of the pathology. The subject work event was the main contributing factor. Dr Bodel reinforced that it was probable that a total knee replacement would be required at some stage in the future and, whilst it was difficult to determine the exact timing of when that would be required, his best estimate was that it would be between the next three to five years. Further, it was an inevitable treatment protocol for this injury.

3. Dr Bodel provided a thorough and fulsome explanation for the need for surgery which was entirely consistent with the contemporaneous records such as the clinical notes. Dr Wallace’s opinion was unreliable. He completely ignored the demonstrable tear of the posterior horn disclosed in the MRI scan report dated 12 January 2021. Rather, he opined that, at worst, Ms Davey suffered a minor aggravation of pre-existing degenerative osteoarthritis involving the medial compartment of the left knee which would have settled within a month of the subject incident. Dr Wallace went on to ameliorate the impact of the injury by suggesting that the mechanism of injury was merely standing in the kitchen and turning around to the bench which was not consistent with being the cause of any significant left knee pathology. Further, he commented that Ms Davey did not fall at the time of the work incident.

4. It was clear from the preponderance of the evidence that Ms Davey sustained a twisting injury to the left knee. Dr Wallace sought to diminish that injury by opining that a minor aggravation would have resolved within a month but he failed to account for the diagnosis of the tear of the medial meniscus. He did not explain why it was that the left knee symptoms were due to pre-existing degenerative osteoarthritis as opposed to the twisting injury that occurred on 14 October 2020 and how it was that Ms Davey had continued to suffer from ongoing effects since that date when she had been able to perform her work meaningfully from the time of her arthroscopy in 2011.

5. Dr Wallace’s bare assertions render his opinion valueless.

6. For the foregoing reasons, the accepted left knee injury on 14 October 2020 caused a deterioration of Ms Davey’s left knee condition in circumstances where she had been able to perform the work meaningfully for a number of years beforehand and was now incapacitated. The need for surgery was not disputed. There should be an award for Ms Davey in relation to the proposed surgery.

Awaken’s submissions in reply

1. Awaken disputed that Dr Bodel provided a thorough and fulsome explanation for the need for surgery that was entirely consistent with the contemporaneous records.

2. Dr Bodel’s report dated 2 June 2022 revealed that Ms Davey stated that her left knee was functioning reasonably well and that she had not had further treatment at that stage. However, he opined that within the next three to five years, knee replacement surgery on the left knee may well be required. He also stated that the PRP injections Ms Davey had received in her left knee were helpful and that she had told him that her left knee was functioning reasonably well at the time and did not require surgery.

3. The records of the improvement in function in Ms Davey’s left knee would therefore support Dr Wallace’s opinion that the injury was, in fact, minor.

4. Dr Bodel’s earlier opinions were in sharp contrast to those in his supplementary report dated 10 November 2023 where he disputed that the injury to the left knee was minor and instead said that there was considerable aggravation, acceleration, exacerbation and deterioration to the underlying disease process.

5. Dr Bodel and Dr Wallace both confirmed that Ms Davey suffered from pathology in the left knee which was of a degenerative nature. Both doctors also agreed that the incident on 14 October 2020 was an aggravation of the underlying osteoarthritic condition. However, the doctors disagree as to whether or not the incident on 14 October 2020 was minor.

FINDINGS AND REASONS

The legislation and legal principles

1. Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay, in addition to any other compensation under the Act, the cost of that treatment or service.

2. Section 60(5) of the 1987 Act relevantly provides the Commission with jurisdiction to determine a dispute concerning any proposed treatment or service and the compensation that will be payable under s 60 of the 1987 Act in respect of any such proposed treatment or service. In this case, the proposed treatment is the left total knee replacement surgery proposed by Dr Brighton.

3. There are two elements to s 60(1) of the 1987 Act that must be considered. The first element is “as a result of an injury received by a worker”. The second element is that of “reasonably necessary” treatment. In this case, the second element need not be considered because of Awaken’s concession that the left total knee replacement surgery proposed by Dr Brighton was reasonably necessary but not as a result of the accepted injury to Ms Davey’s left knee.

4. Dealing with the first element, namely, “as a result of injury received by a worker”, I am required to conduct a common sense evaluation of the causal chain to determine whether the left total knee replacement surgery proposed by Dr Brighton is as a result of the accepted injury to Ms Davey’s left knee on 14 October 2020 within the meaning of s 60 of the 1987 Act.

5. The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[57] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[58] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.

   [57] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.

   [58] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].

6. Murphy v Allity Management Services Pty Ltd[59] referred to Kooragang and is authority for the proposition that an injured worker must establish that the injury materially contributed to the need for the treatment or the surgery. The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Ms Davey only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary “as a result of” the injury. That is, she has to establish that the injury materially contributed to the need for the proposed surgery.

   [59] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

Consideration and findings

1. I accept Ms Davey as a witness of truth, who did her best to provide a history of her injuries, her treatment and her complaints of symptoms to her various treating doctors and the forensic medical specialists. The histories she provided of injury, treatment and complaints of symptoms were consistent.

2. I accept Ms Davey’s unchallenged evidence that, after her left knee arthroscopy on 30 September 2011, she returned to her pre-injury duties at work and pre-injury activities and that, whilst she may have experienced intermittent pain in her left knee thereafter, it did not impact on her ability to work or perform her domestic duties.

3. I accept Ms Davey’s unchallenged evidence that, on 14 October 2020, she twisted her left knee whilst performing food preparation work and moving from the stove to the sink in the kitchen of her home. I accept that she thought it was a strain and that it would settle. However, it did not and, as she continued to work, she found it hard to stand and walk because of left knee pain.

4. Contrary to Dr Wallace’s understanding that Ms Davey had not undergone any treatment between 14 October 2020 and the date of her first post injury consultation with Dr Ktenas on 7 January 2021, Dr Ktenas recorded in the clinical records that she had persevered with chiropractic treatment and Pilates rubs without improvement. On 27 January 2021, Associate Professor Waller reported that Ms Davey’s treatment had included some laser light therapy with her chiropractor.

5. The MRI scan report dated 12 January 2021 revealed a complete radial tear of the posterior horn of the medial meniscus adjacent to the posterior tibial route insertion; medial capsular-ligamentous sprain and inflammation; previous ACL reconstruction with a tibial tunnel cyst and adjacent oedema; medial femorotibial compartment chondromalacia; non-specific joint effusion with synovitis and debris; and increased signal at the anterior tibial attachment of the lateral meniscus.

6. On 27 January 2021, Associate Professor Waller opined that Ms Davey had aggravated her arthritic left knee on 14 October 2020.

7. I accept Ms Davey’s unchallenged evidence that, after her consultation with Associate Professor Waller on 27 January 2021, she underwent physiotherapy to her left knee and PRP injections into her left knee and that those treatments provided her with some relief.

8. Ms Davey’s Mascot Physiotherapy and Sports Injury Clinic clinical records demonstrated that she received treatment in respect of her left knee between 29 January 2021 and late 2021.[60] She also received treatment for her right knee following the consequential condition in her right knee on 9 August 2021 when she was performing single leg extensions on a machine at Mascot Physiotherapy and Sports Injury Clinic. The clinical records corroborated Ms Davey’s evidence that, at that point, the right knee became more painful than the left knee. As did the clinical records of Botany Medical Centre and the reports by Associate Professor Waller and Dr Brighton.

   [60] ARD at pages 44-71.

9. On 22 April 2022, Ms Davey underwent a right hemi knee replacement by Dr Brighton. She underwent physiotherapy and regularly consulted Dr Ktenas. She was off work for a period of time and eventually, made a graduated return to work on restricted hours and duties which were increased in accordance with certificates of capacity issued by her treating doctor.

10. I accept Ms Davey’s unchallenged evidence that, by about September 2022, she was in a fair bit of pain in her left knee but could not get treated until she recovered from her right knee condition. Once the right knee symptoms settled and improved, the focus turned to her left knee. However, in about April 2023, she began experiencing pain in the right knee and consulted Dr Brighton. A right knee MRI scan demonstrated a stress fracture that had not healed properly following the right hemi knee replacement. As a result, she avoided weight-bearing for about three months on the advice of Dr Brighton.

11. I accept Ms Davey’s unchallenged evidence that, from about July 2023, the symptoms in her left knee worsened. She consulted Dr Brighton and underwent a left knee MRI scan. Dr Brighton observed that Ms Davey now had severe loss of articular cartilage in the inner compartment of the left knee. Dr Brighton opined that non-operative measures were unlikely to assist and wrote to icare on 28 August 2023 advising that he recommended left total knee replacement surgery for Ms Davey “as appropriate treatment for this injury”.[61] Dr Brighton clearly related the necessity for the proposed surgery to the injury on 14 October 2020.

    [61] Dr Brighton’s letter to icare dated 28 August 2023.

12. I now turn to the competing forensic medical evidence of Dr Bodel and Dr Wallace.

13. The principles in relation to the acceptance of expert opinions in the Commission are well known. Rule 73(c) of the Personal Injury Commission Rules 2021 provides that “evidence based on speculation or unsubstantiated assumptions is unacceptable”. Rule 73(d) provides that “unqualified opinions are unacceptable”. The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock v East Coast Timbers Products Pty Ltd[62] (Hancock) is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight.

    [62] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.

14. The relevant principles from Makita (Australia) Pty Ltd v Sprowles[63] (Makita) and onward are a guide to the weight to be given to experts’ reports. Makita set out that the requirement for the admissibility of an expert opinion is that it must be established on the facts on which the opinion is based on a proper foundation for the opinion. The opinion of an expert requires demonstration of the examination of the scientific or other intellectual basis of the conclusions reached. The expert’s evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience and in which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. The reasoning must be exposed demonstrating a particular specialised knowledge.

    [63] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705

15. Medical experts must explain the actual path of reasoning by which they arrived at their opinion.

16. In NSW Police Force v Hahn, [64] DP King SC observed that the line of authority commencing with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[65] makes it clear that Heydon J in Makita should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Whilst it is accepted that medical experts do not need to provide elaborate or detailed explanations for their conclusions, more than an assertion without proof is required and the latter seems to be precisely what Dr Wallace has done in this matter.

    [64] NSW Police Force v Hahn [2017] NSWWCCPD 51 at [60].

    [65] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.

17. Dr Wallace assumed that, following the three PRP injections into Ms Davey’s left knee, her pain settled over the following three months. That is not the evidence. Ms Davey referred to the PRP injections as providing her with some relief. Dr Brighton reported that the course of PRP injections into Ms Davey’s left knee were to good effect. Associate Professor Waller reported that Ms Davey had responded reasonably well to a course of PRP injections in her left knee. The evidence is that, for a period of time, the right knee pain became worse than the left knee pain until the right knee improved following surgery. Then the left knee pain worsened whilst she was recovering from the right knee surgery. In the light of such evidence, it is unclear how Dr Wallace concluded that Ms Davey’s left knee pain had settled over the three months following the last of the PRP injections or had resolved within a month of the work-related incident on 14 October 2020. Accordingly, I reject Awaken’s submission that the improvement in function in Ms Davey’s left knee supported Dr Wallace’s opinion that the injury was minor.

18. Dr Wallace did not provide an adequate path of reasoning by which he arrived at his opinion that the aggravation of Ms Davey’s underlying degenerative left knee condition on 14 October 2020 was minor and would have settled within a month of the incident.

19. Dr Wallace opined that the mechanism of the injury was not consistent with being the cause of any significant left knee pathology and seemed to place some emphasis on the fact that Ms Davey had not fallen at the time of the incident. Whilst he referred to it, he failed to engage with the findings in the MRI scan report dated 12 January 2021 that revealed a complete radial tear of the posterior horn of the medial meniscus adjacent to the posterior tibial route insertion; medial capsular-ligamentous sprain and inflammation; previous ACL reconstruction with a tibial tunnel cyst and adjacent oedema; medial femorotibial compartment chondromalacia; non-specific joint effusion with synovitis and debris; and increased signal at the anterior tibial attachment of the lateral meniscus that may reflect further degeneration and surface fraying. Dr Wallace failed to adequately explain his actual path of reasoning in this regard.

20. Dr Wallace placed importance on the assumption that Ms Davey had not received treatment until January 2021. As referred to above, this was not the case as Ms Davey had received some treatment from her chiropractor.

21. Dr Wallace concluded that the surgery proposed by Dr Brighton did not relate to Ms Davey’s workplace incident on 14 October 2020, which had long since resolved. Ms Davey’s need for further treatment of the left knee was related to a pre-existing condition of degenerative osteoarthritis of the joint, which was unrelated to her employment. I give Dr Wallace’s evidence little weight for the reasons stated above.

22. In his supplementary report dated 6 November 2023, Dr Bodel reviewed Dr Wallace’s report, the EML dispute notice and the clinical records of Associate Professor Waller and Dr Brighton. Dr Bodel opined that there had been considerable aggravation, acceleration, exacerbation and deterioration to the underlying disease process in Ms Davey’s left knee caused by the event at work on 14 October 2020. Dr Bodel’s opinion in this regard was supported by the left knee MRI report dated 12 January 2021. He opined that such aggravation, acceleration, exacerbation and deterioration to the underlying disease process was unresolved and ongoing.

23. Dr Bodel went on to expose his path of reasoning in this regard. He observed that the clinical records of Associate Professor Waller and Dr Brighton confirmed the pathology and the need for treatment. He explained that Ms Davey had pathology in the left knee that was due to degenerative change. The “injury” in a legal sense, however, was an aggravation, acceleration, exacerbation and deterioration of that pathology and that the work event on 14 October 2020 was the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration of that disease process.

24. Dr Bodel opined that left total knee replacement surgery would be reasonable and necessary when it needed to be done, as it was an inevitable treatment protocol for that type of injury. Dr Brighton was also of the opinion that the proposed surgery was appropriate treatment for Ms Davey’s injury.

25. I prefer the opinion of Dr Brighton, Ms Davey’s treating orthopaedic surgeon who specialises in hip and knee conditions and the opinion of Dr Bodel over the opinions expressed by Dr Wallace for the reasons stated above.

26. The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. I find that Ms Davey has established, applying the common sense test of causation, that the proposed treatment is reasonably necessary “as a result of” the injury. That is, she has established that the injury materially contributed to the need for the proposed surgery. I am satisfied that Ms Davey has discharged her onus in this regard for the reasons stated above.

1. The preponderance of the medical evidence referred to above supports a finding that Ms Davey sustained a direct injury to her left knee in the twisting incident on 14 October 2020 and that such injury was an aggravation, acceleration, exacerbation and deterioration of an underlying disease process in the left knee. Further, I am satisfied that the aggravation, acceleration, exacerbation and deterioration of the underlying disease process in the left knee caused by the incident on 14 October 2020 made a material contribution to the need for the left total knee replacement proposed by Dr Brighton and that the proposed medical treatment is reasonably necessary as a result of the injury on 14 October 2020.

2. Accordingly, I find that Ms Davey has discharged the onus of proving that the left total knee replacement surgery proposed by Dr Brighton is reasonably necessary treatment as a result of the injury sustained by her in the course of her employment with Awaken on 14 October 2020.

CONCLUSION

1. My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.