Devlin v Molco Holdings Pty Ltd
[2022] NSWPIC 329
•28 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Devlin v Molco Holdings Pty Ltd [2022] NSWPIC 329 |
| APPLICANT: | Terence Devlin |
| RESPONDENT: | Molco Holdings Pty Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 28 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum for back condition consequential to accepted right knee injury in 1996; Moon v Conmah Pty Limited and Kooragang Cement Pty Limited v Bates considered; Held – applicant’s back condition resulted from right knee injury in 1996; matter referred to Medical Assessor for assessment of permanent impairment. |
| DETERMINATIONS MADE: | 1. The applicant’s back condition results from the injury to his right knee on 29 May 1996. 2. Matter remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment, in accordance with the Table of Disabilities, as a result of injury to the applicant’s right knee on 29 May 1996, and consequential back condition resulting from the injury to his right knee on 29 May 1996. Brief to the Medical Assessor to include the Application and attached documents and Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
This is an application by Terence Devlin (the applicant) for lump sum compensation arising out of injury on 29 May 1996 in the course of his employment with Molco Holdings Pty Ltd (the respondent). Injury was described as;
“the Applicant slipped and fell landing on a concrete floor resulting in injury to the right knee. He has subsequently developed an infection which has embedded in the right knee giving rise to further knee replacement surgery and has seeded to the L4/5 disc in the lower back causing injury to the lower back.”
In a notice dated 23 November 2018 under section 74 (as it applied at that time) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the workers compensation insurer of the respondent (the GIO), notify the applicant of a dispute in respect of his claim for lump sum compensation. The GIO advised that it did not accept that the applicant sustained injury to his back or right hip for the purposes of sections 4 and 9 of the Workers Compensation Act 1987 (the 1987 Act). The GIO notified that it did not accept that the need for the applicant’s right knee surgery as a result of the infection in 2016 is related to any injury sustained on about 29 May 1996, and hence denied any claim for permanent impairment in respect of impairment arising from that surgery or from the infection. That the scarring is related to any injury received on 29 May 1996 or the result of any such injury treatment.
In a notice dated 8 December 2021 under section 78 of the 1998 Act, the GIO noted that the right knee injury of 29 May 1996 had been accepted but that the consequential hip and back injuries were disputed. The GIO disputed that the claimed consequential conditions resulted from the accepted injury “as required by sections 4 and 9A” of the 1987 Act. The GIO advised that it had previously accepted liability for the right knee injury on 29 May 1996 and the surgery carried out on the right knee in 2003. The GIO noted that in 2016 the applicant underwent further surgery to his right knee following the development of an infection in that knee and he underwent a right hip replacement in July 2017. The GIO acknowledged lodgement of a lump sum compensation claim with the GIO regarding the alleged consequential injury to the low back, right hip and right knee revision surgery. The GIO relied upon a medicolegal report and opinion of Dr Frawley and referred to his opinion, particularly as to causation, in that regard. The GIO also referred to, among other matters, reports of Dr Kirwan. I note that the applicant did not make a claim in these proceedings for the right hip..
PROCEDURE BEFORE THE COMMISSION
At the conciliation/arbitration hearing of this matter on 23 May 2022, the applicant was represented by Mr T Hickey of counsel, instructed by Ms Sutcliffe, solicitor, and the respondent by Ms Goodman of counsel, instructed by Mr Hodges, solicitor.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Oral Evidence
There was no oral evidence.
FINDINGS AND REASONS
The applicant’s statement
The applicant relevantly provided a statement dated 1 July 2019. He stated that on 29 May 1996 in the course of his normal duties he stumbled and then slipped and fell, landing heavily on a concrete floor on his right knee and hip and sustained injury, with pain mainly from his right knee, although he had pain in his back and down his right side. He stated that he returned to work in early June 1996 performing light duties and had difficulty putting much weight on his right leg because of his knee and he walked with a noticeable limp, which has continued until the time of this statement.
The applicant said that in 2004 he underwent a knee replacement procedure by Dr Kirwan with good result. He stated that this was paid for by the workers compensation insurer.
The applicant stated that in 2016 he developed a “virulent” infection which attacked the prosthesis in his right knee and that he required a further knee replacement. That was done by Dr Kirwan and paid for by the workers compensation insurer.
The applicant stated that after the second right knee replacement he developed significant pain and an increased limp. Previously he had noticed some back pain in 2005, treated by medication which gradually returned to its previous level, and right hip pain in 2006 which was also treated with medication and also gradually settled. After the second right knee replacement with the increased limp he noticed pain in his back and right hip have markedly increased. He stated that his right hip was particularly painful and he was referred to an orthopaedic surgeon, Dr Kolt. He also said that he consulted an orthopaedic surgeon,
Dr Hillier, in Albury, in relation to his lower back. He also stated that he consulted
Dr Rutherford in Albury regarding his blood infection.
Albury Hospital
The emergency department clinical record dated 28 July 2016 noted that the applicant presented with fever. The clinical record also noted a past history which included a right knee operation. Symptom history included vomiting, diarrhoea, temperature for three days and right knee pain. In respect of the right knee, among examination features noted were mild swelling and able to flex 30°. Impression was noted as possible sepsis and possible septic knee.
Dr Gayagay, orthopaedic surgeon, provided an operation report dated 29 July 2016 performed at the Albury Base Hospital. The procedure was an arthroscopic washout/sinovectomy/drainage of the right knee prosthetic infection. Findings included thick purulent collection.
Dr Perkins, locum orthopaedic registrar for Dr Gayagay, provided a letter to Dr Kirwan dated 30 July 2016, with respect to further care of the applicant with a presumed right septic prosthetic knee infection. He noted that the applicant presented unwell to the emergency department on 18 July 2016 with a three day history of right flank pain and right knee pain. Dr Perkins stated:
“he had a significant effusion and was unable to weight bear. He was admitted under the medical team and commenced on IV ceftriaxone and flucloxacillin. He had a subsequent orthopaedic review on 29/7/16. He was febrile to 38.5°, CRP 389, he was unable to weight bear. He underwent arthroscopic washout on the evening of 29/7/16. This showed a large volume of purulent fluid within his joint and a large amount of synovitis. Fluid MCS and gram stain showed no organisms, calcium urate and calcium pyrophosphate crystals…”
A report of a CT of the abdomen/pelvis and CT lumbar spine dated 31 July 2016 by
Dr Kupershmidt noted clinical data as “…severe back and flank pain. Fever. ? Abdominal collection. ? Osteomyelitis. ? Pyelonephritis” found “bilateral L4 pars defect with anterolisthesis and narrowing of the spinal canal and neural foramina, long-standing. No aggressive skeletal lesion and no signs of trauma” and concluded “L4 pars defect with anterolisthesis and narrowing of the spinal canal and neural foramina, long-standing”.Dr Rahmann, orthopaedic resident Albury Hospital, provided a letter dated 2 August 2016 which noted the history recorded by Dr Perkins and also stated:
“on 1/8/16, his C reactive protein was 334, and he is currently afebrile. Although he is recovering well after his previous washout with improvement on both pain and ROM,
Dr David Kirwan and our orthopaedics team feel that is necessary to have another washout of the knee joint.In order to get the procedure done, he needs his work cover reopened.”
A report of an MRI Contrast and MRI Spine Infection of the thoracolumbar spine dated 4 August 2016 noted clinical data as “? Infection”. The report concluded:
“…Oedema and contrast enhancement within the L4 and L5 vertebral bodies with irregular endplates and marked narrowing of the L4/5 disc space. The appearances raise suspicion of osteomyelitis and/or septic discitis. There is also mild contrast enhancement at the anterior L3 vertebral body.
Epidural contrast enhancement is seen extending from top of L3 to superior S1 levels in keeping with epidural inflammation. There is small epidural collection at the left paramedian location of L4 level which contains two small pockets of fluid. It indents onto the adjacent spinal seeker without causing significant canal stenosis.
Inflammation with small abscesses are evident at the right paraspinalis muscle at L1/2 level…”.
A discharge summary signed by Dr Teo, orthopaedic doctor, on 9 August 2016 in respect of a discharge on 3 August 2016. Principal diagnosis was noted as “pseudo-gout of the right knee”, “gout of the right knee” and “… Septic arthritis of the right knee”. With respect to the presenting complaint, it was noted that the applicant “presented with febrile episode for the past two days…”. Examination was recorded as “right knee – large effusion, tender to light touch, ROM zero – 30°…”. Treatment was noted as right knee arthroscopy and washout. Plan was for takeover of care by Dr Kirwan.
Dr Kirwan
Dr Kirwan, hip and knee surgeon, provided clinical records, including a number of treating reports. He also provided a letter to QBE dated 31 August 2016.
In a treating report to Dr Cook dated 19 August 2016, Dr Kirwan noted that the applicant presented to the hospital with two weeks of right knee and back pain. He noted that “his replaced right knee was infected and had been washed out twice at ABH”. Dr Kirwan also noted that in view of the applicant’s past splenectomy, he added a very high dose penicillin to the broad-spectrum cover that the applicant was already receiving. Dr Kirwan noted that the applicant “indeed grew strep-pneumoniae”. He noted that the applicant was unable to move in bed due to severe back pain, and an MRI scan of the spine was arranged which showed “a very destructive osteomyelitis of the L4 and L5 vertebral bodies, with abscess formation in the epidural space and in the para-spinal muscles”.
Dr Kirwan recorded that the applicant underwent surgery on 9 August and the old skin incision was reopened and the knee was cleaned out by the old lateral approach to the knee and a formal synovectomy was performed and a “K Kanamycin impregnated prosthesis” was inserted as a first stage of a proposed two-stage revision.
In a letter to QBE dated 31 August 2016, Dr Kirwan stated:
“further to your email dated 30 August, Mr Devlin has had a bacteria enter his bloodstream, but because there was a foreign body (his old prosthesis) in his knee, the bacteria lodged there. Severe infection in his knee followed. He became extremely unwell (septicaemia). All his other problems arose from this focus of infection around the prosthesis. The prosthesis did not cause the infection, it simply facilitated and hosted it.”
In a report to Dr Cook dated 14 October 2016, Dr Kirwan recorded further surgery on 20 September for revision or second stage arthroplasty operation in which the same wound was reopened. The previous “K antibiotic impregnated prosthesis” was removed and a “Braun E.motion mobile bearing prosthesis” was inserted.
In a report to Dr Cook dated 3 November 2016, Dr Kirwan reviewed the applicant and noted that his main complaint was right groin pain. He stated:
“His progress is satisfactory. The wound is fine. Alignment and stability are satisfactory. The knee moves 5° to 50°. He walks well on a single crutch. His groin pain is likely due to hip arthritis. Obviously, this lesser problem is not one QBE need be concerned about in terms of liability.”
In a report to Dr Cook dated 24 November 2016, Dr Kirwan reviewed the applicant and recorded that “he continues to improve, but given the scarring, swelling with activity and night pain, we may be sitting on an ongoing but suppressed infection”. He recorded that there would be further review with a comparison X-ray and progress blood tests. Subsequent review on 18 January 2017 by Dr Kirwan indicated that the applicant had “dodged a bullet” with respect to infection.
In a report to Dr Cook dated 14 February 2018, Dr Kirwan noted that he had reviewed the applicant “following two-stage revision right knee replacement for pneumococcal infection and overwhelming sepsis”. He noted that the applicant had no pain in the knee but persisting stiffness. He recorded that it was non-tender and not swollen and moved 0° to 80° with no pain at either extreme. He was of the opinion that the applicant was “probably a good candidate for an arthroscopic soft tissue ablation procedure, i.e. to treat the stiffness” and that “the suprapatellar scar can be removed arthroscopically”. Dr Kirwan provided a request for approval to QBE on the same day in respect of that procedure.
In a letter to Dr Cook dated 6 April 2018, Dr Kirwan noted that the workers compensation insurer had denied the applicant’s claim to have the knee arthroscopically relieved of the excessive scarring and Dr Kirwan had written to the applicant’s solicitor “in the hope that we can help”.
There were also review letters from Dr Kirwan to the applicant’s treating general practitioner Dr Cook from 2012, Dr Oxbrow prior to 2012. These were periodic reviews after the 2003 knee replacement and did not appear to report any difficulties.
Other documents
Approved Medical Specialist (AMS) Dr Huntsdale issued a Medical Assessment Certificate (MAC) dated 16 May 2006. This was an assessment of a general medical dispute, which was evidence in those proceedings but was not conclusively presumed to be correct. The issue in dispute was whether or not the applicant suffered any permanent loss of efficient use of his right leg at above the knee as a consequence of the incident which occurred at work on 29 May 1996. Dr Huntsdale was of the opinion that the applicant would eventually require a total knee replacement. He assessed 35% permanent loss of efficient use of the right leg at or above the knee reduced by one third for pre-existing asymptomatic osteoarthritis. A Certificate of Determination dated 27 June 2006 in the same matter noted the agreement of the respondent to pay the applicant lump sum compensation in respect of 23% permanent loss of efficient use of the right leg at or above the knee.
A bone scan report dated 18 October 2016 of Professor McLean, radiologist, noted the reason for the study was “evaluation of suspected residual infection…? Infected three months ago although has subsequently had a full revision and right total knee replacement. Low back pain. MRI demonstrated increased uptake involving L4 and L5 vertebral bodies as well as degenerative disc? Infection? Degenerative…”. Findings included “on the subsequent static images, there is moderately increased uptake at L4/5 bilaterally. Focal uptake is also present at L3 on the right…”, also “… On SPECT/CT imaging, markedly increased uptake is present involving the adjacent L4 and L5 vertebral bodies at the site of the disc disease…” and “… Markedly increased uptake is present at L1/2 on the right, mildly at L3/4 bilaterally and L4/5 bilaterally” and also “severe bilateral L4/5 foraminal narrowing secondary to the disc bulge in the grade 1 to 2 anterior spondylolisthesis”.
Dr Burns
Dr Burns, occupational physician, provided a report to the applicant’s solicitors dated 19 April 2021.
Dr Burns took a history of the injury to the applicant’s right knee on 29 May 1996. He also noted that Dr Kirwan carried out a right-arthroplasty (half knee replacement) on 24 February 2003 and the lateral compartment of the knee joint was replaced. Following pain and discomfort, it was noted by Dr Burns that there was a degree of impingement and Dr Kirwan carried out an osteotomy of the right fibula head on 28 July 2003. Dr Burns noted that following this second operation the knee settled down with little if any pain.
Dr Burns also recorded that the applicant thereafter continued to see Dr Kirwan on a regular basis every two to three years up until 29 January 2015 and at each review he would have an X-ray of the knee which revealed that the hemi-arthroplasty remained in anatomical position.
Dr Burns noted the admission at the Albury Base Hospital on 25 July 2016 with vomiting and painful swollen right knee and re-presentation on 28 July 2016 again with a swollen and painful right knee and also a substantial fever with admission to the hospital and a diagnosis of an infection in the right knee replacement. He noted that the applicant received analgesia and antibiotics and he underwent right knee arthroscopy where it was found there was significant infection in the knee so the knee was washed out and post operatively he continued with intravenous antibiotics.
Dr Burns recorded a history that the applicant was transferred to the Albury Private Hospital under the care of Dr Kirwan with a change in antibiotics when the bacteria was identified.
Dr Burns also recorded a history that at about this time the applicant also noted some pain in his low back. Dr Burns recorded that a right total knee replacement was carried out as a two-stage operation, the first on 9 August 2016 with the removal of the lateral hemi-arthroplasty and replacement by a spacer with a further knee joint washout performed at the same time, and the second part of the procedure was carried out on 20 September 2016 with removal of the spacer and insertion of a full total knee replacement. The applicant was finally discharged from hospital on 18 October 2016.Dr Burns also recorded that the applicant said that during the time that he was in hospital he also had investigations of his spine, which revealed that the infection, which had gone to his knee, had also gone to his lumbar spine. The infection was controlled by the antibiotics and eventually resolved. The applicant said that he continued with physiotherapy, mostly for the right knee and to a lesser extent for his low back. He also recorded that the applicant said that his right knee range of movement never came back to normal and eventually Dr Kirwan recommended further surgery to remove scar tissue around the knee itself but this operation was declined by the insurance company.
Dr Burns also noted current symptoms and also a subsequent medical history of the development of pain in the right hip in June 2016 and referral to Dr Kolt, orthopaedic surgeon. He noted that Dr Kolt diagnosed severe osteoarthritis not associated with the right knee condition and a right total hip replacement was carried out on 12 July 2017, with good result although gradual return of some intermittent pain in the hip and no further treatment in this regard.
Dr Burns diagnosed injury to the right knee on 29 May 1996 (incorrectly recorded as 29 May 2016) which aggravated and accelerated degenerative change (osteoarthritis) of the right knee with eventual right Uni compartment knee replacement on 24 February 2003 and subsequent right fibula head osteotomy on 28 July 2003. He stated:
“In July 2016 Mr Devlin contracted an infection, which became a bacteraemia involving his blood stream. The infection thus seeded into his previous right unicompartment knee replacement as this was a foreign body and thus prone to such infection. From the documentation it appears that he also developed back pain about 1 week after the knee pain developed and an investigation of his lumbar spine was carried out when he was in Albury Private Hospital.”
In providing his opinion, Dr Burns noted that he was asked to assume a number of matters including that “Mr Devlin has contracted an infection, which has ceded to his right knee and his spine”.
In response to the question “can you explain the nature and effect of the bacteraemia infection suffered by Mr Devlin including how such an infection probably developed in
Mr Devlin’s circumstances”, Dr Burns noted that after initial presentation at the Albury Base Hospital with right flank pain and right knee swelling and discomfort, initially thought to be a urinary tract infection, the streptococcus pneumoniae urinary antigen test was positive, “suggestive of a systemic streptococcal infection”. He noted that the applicant had a splenectomy in 1976 “which would have impacted upon his immune status and made it more likely for him to have a bacteraemia developed after an infection”.Dr Burns responded to a question about whether he agreed with the opinion expressed by
Dr Kirwan at the beginning of the third paragraph of his report of 3 December 2019. I note at this point that the report of Dr Kirwan of 3 December 2019 was not attached to the Application or to the Reply. Following submissions by the respondent, the applicant tendered the report of Dr Kirwan dated 3 December 2019, but following objection by the respondent as to prejudice at a late stage, the report was not admitted. In any event, Dr Burns responded as follows:“I note that Dr Kirwan stated in 2016; ‘Terry suffered an unrelated bacteraemia. Because he had artificial components in his right knee, that brief blood borne infection seeded to the knee and became established in the knee. He became very unwell. The knee was destroyed. Subsequently the infection seeded to his spine where two vertebral bodies were almost destroyed. These developed, which would not have occurred in a normal patient, i.e., they only occurred in Terry because he had artificial components in his right knee. He required two extensive procedures to his knee to treat this problem. As it often seen with intraarticular infection, arthrofibrosis develops’.
I would certainly agree with the opinion of Dr Kirwan with respect to the unrelated bacteraemia. My only concern would be to the chronological development of each infection. It is obvious that in mid to late July 2016 he had developed pain and swelling in the right knee. This was associated with the seeding of the bacteria into the knee replacement. I am rather uncertain though as to when the back problem first commenced. Mr Devlin believed that it had occurred when he was in the Private Hospital after his transfer, but I note that the investigations of his low back was done on 3 August 2016 (date of transfer) whilst he was possibly still in the Public Hospital. On the balance of probabilities, I believe it is more likely that the infection seeded from the knee infection to the back about 1week after the development of knee pain. Therefore, I believe the back condition would also be considered as associated with his knee condition.”
Dr Burns was of the opinion that the 1996 injury, eventually treated with a right unilateral knee prosthesis, contributed to the subsequent infection in 2016. Dr Burns was of the opinion that on the balance of probabilities the 1996 injury is the main contributing factor to the subsequent infection and the requirement for a total knee replacement and the infection in the lumbar spine. Dr Burns commented that the previous splenectomy in 1976 would also have lowered the applicant’s immune status and thus predisposed him to future inspection but he was not a specialist in infectious diseases or immunology and if further information was required then approach could be made to a specialist in that area.
A/Prof Ryan
A/Prof Ryan, clinical Associate Professor of surgery, orthopaedics and spinal surgery, provided a report to the applicant’s solicitors dated 21 April 2021.
A/Prof Ryan noted the workplace injury on 29 May 1996 to the applicant’s right knee. A/Prof Ryan noted a history of treatment by Dr Kirwan including surgery on 24 February 2003, right knee lateral uni-compartmental knee aetgroplasty. Also noted was surgical treatment on 28 July 2003 to excise an osteophyte from the posterior tibia and fibula head with satisfactory recovery.
A/Prof Ryan also noted reassessment and review of the applicant by Dr Kirwan in 2006, 2010, 2012 and 2015.
A/Prof Ryan recorded the hospital presentation on 28 July 2016 at the Albury Hospital Emergency Department with nausea and vomiting, complaints of bilateral flank pain and pain and swelling in the right knee and notation of splenectomy in the past, temperature and right knee examination with slight swelling and slightly warm and flexion of the knee to 30°. He noted a provisional diagnosis was made of sepsis, possible sources considered being the urinary tract or the right knee. He noted right knee X-ray reports and admission under the medical team, who commenced him on ceftriaxone and flucloxacillin (antibiotics). He noted orthopaedic team review on 29 July 2016 and the applicant was febrile and unable to weight bear on the right knee. He noted right knee surgery on 29 July 2016 when an arthroscopic washout was performed which showed large volume of purulent fluid in the knee joint and a large amount of synovitis. He noted fluid microscopy, culture and sensitivity and gram stain showed no organism and calcium urate and calcium pyrophosphate crystals were found. He noted that by 1 August 2016 the applicant’s C-reactive protein was 334 (down from 389) and he was afebrile and pain and range of motion had improved and was still recovering from right knee surgery.
A/Prof Ryan noted surgery on 29 July 2016 performed by Dr Perkins who carried out an arthroscopic washout of the joint followed by synovectomy and drainage of the right knee post prosthetic infection. He noted CT reports of the abdomen and pelvis and lumbar spine on 31 July 2016 and MRI of the thoracolumbar spine on 4 August 2016. A/Prof Ryan noted right knee surgery on 9 August 2016, being the bride bent and removal of prosthesis (incorrectly referred to as the left knee) and insertion of a knee spacer on 9 August 2016 performed by Dr Kirwan. A/Prof Ryan noted the reports of right knee surgery on 9 August 2016 and re-replacement of the right knee on 20 September 2016. He noted presentation to Dr Kolt and right hip replacement on 12 July 2017.
A/Prof Ryan noted that Dr Kirwan’s most recent assessment of the applicant was on 3 December 2019 and at that visit he had 80° of right knee flexion compared to 120° on the left and the hip replacement was satisfactory.
In respect of causation, A/Prof Ryan noted that the applicant suffered a bacteraemia because of infection in his right knee replacement, noting the history on 29 July 2016. He stated that “this led to later secondary pyogenic vertebral osteomyelitis in his lumbar spine”. A/Prof Ryan concluded that the applicant’s right knee and back injuries are related to the 1996 injury.
In response to a question as to whether the impairment of the applicant’s back, right leg at or above the knee and disfigurement arise from the initial 1996 injury or the aggravation exacerbation or acceleration of a disease process, A/Prof Ryan stated:
“Mr Devlin’s impairment of his back due to metastatic infection arising from Bacteriaemia and right knee arise from the aggravation and exacerbation of his disease process.
The bacteraemia resulted in seeding of bacteria in the L4/5disc space, either at the inferior or superior end-plate. This resulted in Bacterial destruction of the disc and likely destruction of the adjacent vertebral end-plates that have fused to each other in the process of healing. Unfortunately, this has resulted in a shortening of the anterior column of the spine as the
posterior column was not affected. The result is Kyphosis between L4 and L5.
Mr Devlin’s Initial injury has set in train a process of treatment to maintain his ability to walk. Unfortinately, His [sic] surgeries have been complicated by infection. His apparent propensity to infection may be due to him requiring Splenectomy in 1976 due trauma.”
A/Prof Ryan concluded that the applicant had sustained 60% impairment “because of his right knee injury that resulted in destruction of his right knee joint” and “35% loss of efficient use of body parts because of his spinal injury secondary to metastatic pyogenic vertebral osteomyelitis, causing fusion of the L4 and L5 vertebral bodies, in Kyphotic alignment”.
Dr Frawley
Dr Frawley, orthopaedic surgeon, provided reports to QBE and to the respondent’s solicitors dated 6 November 2017 and 19 November 2021.
In his report dated 6 November 2017, Dr Frawley took a history of the injury to the applicant’s right knee in 1996, subsequent partial knee replacement by Dr Kirwan and development of an infection in the knee in 2016 with initial surgeries and subsequent joint replacement.
Dr Frawley did not take a history in relation to the applicant’s back. He was unable to provide comment upon whether the current impairment directly relates to the injury of 1996.In his report dated 19 November 2021, Dr Frawley recorded that “it would appear that he had very good function in his right knee prior to developing a serious infection in 2016. During the recovery phase of further knee surgery (to treat the infection), he developed back pain”. He noted that Dr Kirwan has offered further surgery to free up the stiffness in the knee but the applicant cannot afford to pay for it privately and was awaiting a further compensation payout to undertake the surgery. Dr Frawley recorded a history of good function of the knee after the partial knee replacement in 2003 until about 2016 when he developed in the knee.
Dr Frawley commented on correspondence forwarded to him, including the following:
“The reports from Dr Fielding and A/Prof Ryan (2019 and 2021 respectively) provide more detail regarding the spine, especially the imaging procedures. Based on the comments from Dr Fielding, the infection of the spine was in the vertebral bodies, not the disc. Such infection would not directly lead to degenerative arthritis in the spine. The report of A/Prof Ryan makes reference to a CT scan demonstrating a bilateral pars defect and associated spondylolisthesis, which would be more likely to lead to arthritic change within the spine.”
He noted that the applicant “appears to have developed spontaneous osteomyelitis in his lumbar spine following the episode bacteraemia that led to an infection of the knee and associated septicaemia (infection within the blood)”.
Dr Frawley stated:
“The infection of 2016 was not directly related to the joint replacement of 2003. Rather, Terry was more likely to develop infection in his right knee as a consequence of his previous splenectomy (which renders him more susceptible to infection), as well as having a foreign body (partial joint replacement) in his knee. However, it should be noted that 1-2% of all joint replacements can become infected, for a whole variety of reasons. Therefore, I consider that the injury of 1996, and subsequent surgery, is a contributing factor to the infection in 2016.”
In relation to the applicant’s lumbar spine, Dr Frawley stated:
“I consider there is no link between the workplace accident to the right knee in 1996 and Terry’s current back pain. The comprehensive report from A/Prof Ryan (compiled earlier this year) details the MRI scan findings of moderate arthritic change within the spine and a mild spondylolisthesis, neither of which relate to the epidural abscess which was referenced in the earlier spinal imaging reports (from 2016). Furthermore, when I saw Terry in 2017, in order to compile my initial report, he made no mention whatsoever of back pain. To further clarify the chronology of his back pain, I suggest you contact his local Doctor and peruse the records of attendance to clarify if there has been any ongoing issues of back pain.”
Discussion
There was no dispute, in the respondent’s submissions, that the right knee infection in 2016 resulted from the 1996 injury. The approach adopted by the respondent, in my view, was correct. When his opinion is considered as a whole, Dr Frawley did not dispute that the right knee infection in 2016 resulted from the 1996 injury. Although Dr Kirwan in a report dated 31 August 2016, to which the s 78 notices referred, stated that the prosthesis did not cause the infection, it simply facilitated and hosted it, this was not an opinion that the right knee infection was unrelated to the injury of 29 May 1996. The quoted section of Dr Kirwan’s report of 3 December 2019, contained in the report of Dr Burns dated 19 December 2021, made it clear that it was his view that, because of the artificial components in the right knee, the development of the seeding and infection of the right knee would not have developed in a normal patient, that is they only occurred because he had artificial components in his right knee. The respondent did point to an absence of history of any issues with the right knee from 2003 until 2016, but this was in the context of a criticism of the report of Dr Burns as to weight, rather than a positive assertion that the 2016 infection did not result from the 1996 injury.
I do not prefer the opinion of Dr Frawley. He stated that the infection of the spine was in the vertebral bodies, not the disc. Dr Frawley’s statement in this regard was based on comments from Dr Fielding. However, the report of Dr Fielding was not before me. I accept the applicant’s submission that the opinion of Dr Frawley in this regard is unexplained.
In the same commentary by Dr Frawley in respect of Dr Fielding, other than noting that the report of A/Prof Ryan provides more detail regarding the spine, especially imaging procedures, Dr Frawley did not engage with the explanation by A/Prof Ryan as to how the infective process resulted in the identified pathology and damage in the lumbar spine.
In relation to Dr Frawley’s opinion that there was no link between the workplace accident in 1996 and the current back pain, he noted the report of A/Prof Ryan detailing the MRI scan findings of moderate arthritic change and a mild spondylolisthesis, neither relating to the epidural abscess referenced in the earlier spinal imaging reports from 2016. This, however, did not engage with the question as to the infective process seeding from the knee to the spine. I accept the applicant’s submission that Dr Frawley did not say that the infective process did not seed from the right knee to the spine. Whilst the respondent’s submission that Dr Frawley’s comment, that there was “spontaneous” osteomyelitis in the lumbar spine “following” the bacteraemia, did not amount to affirming a causal link, is correct, this in my view does not detract from my view that he did not engage with this question, and that he did not provide reasons for the contrary opinion.
In relation to the report of Dr Burns, the respondent took issue with what it says was a failure to respond to the question asked in relation to the report of Dr Kirwan dated 3 December 2019, without even setting out what was said by Dr Kirwan and where that report of
Dr Kirwan was not in evidence. In my view in the response quoted above, Dr Burns was responding to the question with a quote from the report of Dr Kirwan dated 3 December 2019. Dr Burns was quoting Dr Kirwan referring to the events in 2016. Dr Burns was not quoting from a report by Dr Kirwan that was made in 2016. The applicant sought to tender the report of Dr Kirwan dated 3 December 2019, as noted above, and I do not draw an inference that the report of Dr Kirwan would not have assisted the applicant. In any event,
Dr Burns reached his own conclusions, quoted above, that is he explained that his opinion was in agreement with Dr Kirwan as to the bacteraemia, and explained his view as to the onset of the back problems. There was no objection by the respondent to the quote taken by Dr Burns from the report of Dr Kirwan.Further, the s 78 notice dated 8 December 2021 specifically noted and quoted from a report of Dr Gehr following examination arranged by the applicant’s solicitors on 27 August 2018, as well as a further supplementary permanent impairment assessment report dated 27 December 2018, and the commencement of proceedings in the Commission in 2019, which were discontinued on 30 September 2019. I am not compelled to make an inference in relation to the reports of Dr Gehr in these circumstances[1], nor is an inference applicable when either party could have tendered the evidence[2]. I decline to make an inference in respect of the reports of Dr Gehr.
[1] Manly Council v Byrne [2004] NSWCA 123.
[2] Payne v Parker [1976] 1 NSWLR 191.
The respondent also challenged the relevance of the opinion of Dr Burns as an occupational physician, in circumstances where the applicant was treated by an orthopaedic surgeon and reports of treating specialists Dr Rutherford and Dr Hillier, and the qualified reports of
Dr Gehr, were not in evidence, without explanation. It seems to me that an attack on the expert opinion of Dr Burns has no foundation where the only basis is one of relevance, that is his specialty differs to those of other specialists who treated the applicant. As I understood the submission, the criticism was not made on the basis that Dr Burns did not have qualifications to make an expert opinion on the subject matter of his report. I accept the applicant’s submission that Dr Burns is qualified to provide an expert opinion in this matter. The absence of explanation referred to above should also not be accepted. A fair climate is not contingent upon the opinions of treating specialists, rather it is the “extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports”.[3] The opinion of Dr Burns, in the absence of reports noted above, is not a failure to “identify the facts and reasoning process which he or she asserts justify the opinion”.[4][3] Hancock v East Coast Timber Products Pty Ltd (Hancock) at [77].
[4] Hancock at [88].
If it was the respondent’s argument that the absence of these reports meant an absence of evidence as to treatment and investigations, then Dr Burns did refer to evidence in explaining his opinion. As was noted by the respondent, Dr Burns was uncertain as to when the back problem first started. Dr Burns noted the applicant’s own evidence that he believed it was while in the private hospital after transfer from the public hospital, but investigations were done on 3 August 2016, which he thought was the day of the transfer, while still possibly in the public hospital. Although Dr Kirwan in his report of 19 August 2016 noted presentation to the Base Hospital with two weeks of right knee and back pain, the source of the information is not identified, and the clinical notes of admission on 28 July 2016, as noted above, took a history of three days right knee and right costovertebral pain, described by Dr Perkins and A/Prof Ryan as right knee and right flank pain. The first reference to back pain was in the CT scan report dated 31 July 2016 which reported an L4 pars defect with anterolisthesis. There was no reference to back pain in either the report of Dr Rahmann of 2 August 2016, or the Discharge Summary of 3 August 2016. It was not until the MRI of 4 August 2016 that was there were findings or issues noted of possible osteomyelitis and/or septic discitis, epidural inflammation, pockets of fluid and inflammation with abscesses.
On balance, it seems to me that there was sufficient information to support the estimation of the onset of back pain made by Dr Burns, for the purpose of estimating when the seeding of the infection to the back took place. The applicant’s statement was not of much assistance. However, the documents noted in my view provide support for the opinion of Dr Burns. In my view, there was a fair climate for Dr Burns to provide his opinion.
In relation to the opinion and report of A/Prof Ryan, it was submitted by the respondent that the bacteraemia resulted in the infection in the right knee, not the converse, as suggested by A/Prof Ryan. Dr Frawley stated that it was the “episode bacteraemia that led to an infection of the knee and associated septicaemia”. However, Dr Burns was of the opinion that the applicant’s immune status “made it more likely for him to have a bacteraemia develop after an infection”. It is in this context that Dr Burns agreed with Dr Kirwan, who was recorded as stating that this “brief blood borne infection seeded to the knee and became established in the knee” and “subsequently the infection seeded to his spine where two vertebral bodies were almost destroyed”. Based upon the opinions of Dr Kirwan and Dr Burns, the initial bacteraemia, referred to somewhat ambiguously by Dr Frawley as “episode bacteraemia” was brief, following which it became established in the right knee, and it then developed after the right knee infection. In this context, when his report is considered as a whole,
A/Prof Ryan was not incorrect to state that the applicant “suffered a bacteraemia because of infection in his right knee replacement” and the applicant’s back impairment was “due to the metastatic infection from Bacteraemia and right knee arise from the aggravation and exacerbation of his disease process”. The respondent has based its criticism on the opinion of Dr Frawley noted above, which is at best ambiguous in referring to an “episode bacteraemia” and in not discussing the bacteraemia after the establishment of the infection in the applicant’s right knee, notwithstanding the unexplained assertion of “spontaneous osteomyelitis”. I do not accept the respondent’s submission.In relation to the opinion of A/Prof Ryan as to “metastatic infection” noted above, the respondent submitted that there was no evidence to show that the infection in the back was the same as that in the knee. I do not accept that submission. There is evidence in the form of the expert opinions of Dr Burns and A/Prof Ryan, who accepted that there was “seeding” from the knee infection to the back. Dr Burns, noting the quoted opinion of Dr Kirwan, was of the opinion that the infection seeded from the knee infection to the back.
A/Prof Ryan was of the opinion that the bacteraemia due to the infection in the right knee replacement led to later secondary pyogenic osteomyelitis in the lumbar spine, that is metastatic infection arising from bacteraemia and the right knee, and the bacteraemia resulted in seeding of bacteria in the L4/5 disc space. The premise of the submission by the respondent is the notion of being “the same”, which relevantly may mean “being one or identical, though having different names”, or “unchanged in character, condition, etc”[5]. However, it cannot be assumed, without medical evidence, that the course and outcome of an infection may be identical in different parts of the body, nor that an alleged lack of evidence of “sameness” means that it has not been established that the claimed condition results from the 1996 injury. What is important in this case is the process or cycle of infection, bacteraemia and infection again, that is the development of bacteraemia, caused by infection in the knee, resulting in the seeding of the bacteria in the L4/5 disc space. That process or cycle does not require “sameness” in the sense of direct evidence of bacterial or infection identity. Even if sameness is required, then an inference can be made from the opinions of Dr Burns and A/Prof Ryan, the onset of back pain about one week after the knee infection, and the lack of other explanatory cause for the back infection, notwithstanding the unexplained, or at least the less than persuasive, notion of “spontaneous” osteomyelitis posited by Dr Frawley.[5] Macquarie Dictionary, eighth edition, p 1347.
A/Prof Ryan in his report referred to the applicant’s “surgeries being complicated by infection”. This was criticised by the respondent, who submitted that it was unclear as to which surgeries he was referring to. I think this statement should be considered in the context of his report, in which it noted that these surgeries took place after the 2016 infection. In any event, this statement was made in the context of noting the process of treatment since the initial injury in 1996, and was not part of the above opinion as to the causation issue in respect of the back infection.
The respondent also submitted that A/Prof Ryan also referred to the report of Dr Kirwan dated 3 December 2019 and relied upon its previous submission with respect to Dr Burns in this regard. I read this as a notation by A/Prof Ryan of Dr Kirwan’s findings of knee flexion on 3 December 2019. There was no reference by A/Prof Ryan to any other matter in this regard. A/Prof Ryan referred only to the “most recent assessment” by Dr Kirwan. I do not accept this submission. In my view the opinion expressed by A/Prof Ryan was his own.
As noted above, the applicant’s statement was not of much assistance. However, the relevant documents noted were. In my view, there was a fair climate for A/Prof Ryan to provide his opinion.
It follows that I prefer the opinions and reports of Dr Burns and A/Prof Ryan.
Injury to the back, in the sense of s 4 of the 1987 Act, is not required to be established. The question is whether the applicant’s back condition has resulted from the injury to his right knee on 29 May 1996.[6] What is required is “a common sense evaluation of the causal chain”.[7]
[6] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45].
[7] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
In my view, the causal chain between the applicant’s right knee injury of 29 May 1996 and his lumbar spine condition has been established. The applicant underwent partial knee replacement in 2003, with insertion of artificial components. He sustained a brief bacteraemia resulting in right knee infection from about 18 July 2016, with admission to the Albury Public Hospital again on 28 July 2016 with right knee infection, CT lumbar spine on 31 July 2016, discharge from the public hospital to the private hospital on 3 August 2016, the onset of back symptoms after the right knee infection, MRI lumbar spine on 4 August 2016, the development of bacteraemia because of the knee infection, resulting in the seeding of bacteria in the L4/5 disc space, causing fusion of the L4 and L5 vertebral bodies. In my view, in the absence of persuasive evidence to the contrary, the sequence of events, together with the expert opinion of Dr Burns and A/Prof Ryan, establish a finding that the applicant’s back (lumbar spine) condition resulted from the injury to his right knee on 29 May 1996.
0
3
2