Diab v NRMA Ltd
[2014] NSWWCCPD 72
•10 November 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Diab v NRMA Ltd [2014] NSWWCCPD 72 | ||
| APPELLANT: | John Diab | ||
| RESPONDENT: | NRMA Ltd | ||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-5150/13 | ||
| ARBITRATOR: | Ms K Haddock | ||
| DATE OF ARBITRATOR’S DECISION: | 22 July 2014 | ||
| DATE OF APPEAL HEARING: | 5 November 2014 | ||
| DATE OF APPEAL DECISION: | 10 November 2014 | ||
| SUBJECT MATTER OF DECISION: | Hospital and medical expenses under s 60 of the Workers Compensation Act 1987; whether knee surgery was reasonably necessary as a result of accepted work injuries; causation; meaning of “reasonably necessary”; Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 and Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 discussed and explained in light of Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99; failure to draw compelling inferences; requirement for an expert to explain his or her opinion | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Ms E Grotte, instructed by Turner Freeman | |
| Respondent: | Mr S Flett, instructed by Moray & Agnew | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 22 July 2014 is revoked and the matter is remitted to a different Arbitrator for determination of all outstanding issues in accordance with the reasons in this decision. 2. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed. | ||
INTRODUCTION
This appeal involves a challenge to an Arbitrator’s finding that the cost of hospital and medical treatment under s 60 of the Workers Compensation Act 1987 was not reasonably necessary as a result of certain accepted work injuries. For the reasons explained below, the appeal is successful.
BACKGROUND
The appellant, John Diab, works for the respondent employer, NRMA Ltd (the respondent), as a road service patrol officer. It is not disputed that he injured his left knee in the course of his employment with the respondent on several occasions, but the nature of the injury and the need for surgery as a result of injury is disputed.
The first injury was on 3 January 2005. Mr Diab gave unchallenged evidence that, on that day, he twisted his left knee while getting out of a low vehicle and he felt “acute and debilitating pain” in his knee. He saw his general practitioner, Dr Dick Kuo, who referred him for physiotherapy. Though Mr Diab remained at work, initially on light duties and then on full duties, he said that he continued to experience intermittent symptoms in his knee.
In or about April 2012, Mr Diab again twisted his left knee while getting out of his vehicle to assist an NRMA member. He felt pain and clicking in his knee and reported it to the respondent. He again had physiotherapy and Dr D Kuo referred him to Dr B Fritsch, orthopaedic surgeon. Though this injury has not been specifically pleaded, it is not disputed that it occurred or that Mr Diab is entitled to rely on it.
On 1 August 2012, Mr Diab had an MRI scan of his left knee, arranged at the request of Dr Fritsch. That scan revealed a tear in the lateral meniscus and a ganglion in the anterior cruciate ligament. Dr Fritsch reported to the respondent on 16 August 2012 that the meniscus tear could occur acutely, even with a simple twisting motion. He added that, other than from Mr Diab’s history, it was not possible to determine from the MRI when the tear occurred.
On 25 August 2012, Mr Diab slipped on a patch of oil. He landed on his right shoulder and aggravated the pain in his left knee. He again reported the injury, which occurred in the course of his employment, and was placed on restricted duties.
On 13 September 2012, Mr Diab saw Dr Fritsch again. On that day, Dr Fritsch wrote to the respondent summarising Mr Diab’s history, which summary included the 2005 twisting injury, when Mr Diab “felt something snap inside”, noting that his symptoms settled after that injury and he “really had no problems” until April 2012, when he again twisted his left knee and had acute lateral sided knee pain with clicking and catching.
Dr Fritsch noted that Mr Diab’s knee remained very painful. He had localised lateral knee pain, clicking, and catching in that region. He was limping and quite uncomfortable, but remained at work, doing all his duties, apart from changing tyres. Dr Fritsch said that treatment for Mr Diab’s meniscal tear would be an arthroscopic partial meniscectomy. Mr Diab had been “struggling” since April (2012) and, if anything, his knee was getting worse. Dr Fritsch did not believe the knee would settle without surgery.
On 2 November 2012, Mr Diab saw Dr Stephen Rimmer, orthopaedic surgeon, qualified by the respondent’s insurer, CGU Workers Compensation (NSW) Ltd (CGU). Dr Rimmer took a history of the 2005 injury and that, “[f]or the main part”, Mr Diab’s symptoms resolved and he was able to return to full duties. However, Mr Diab was adamant that, between the first injury and April 2012, he had “recurrent similar episodes”, which he attributed to the low-lying nature of his (work) vehicle.
Dr Rimmer concluded that the tear of the lateral meniscus was degenerative and did not have the appearance consistent with an acute injury. Therefore, it was not work related and was an incidental finding. He said that Mr Diab’s main predominant problem was anteriorly-based knee pain, due to quadriceps insufficiency. As to “which incident has caused [Mr Diab’s] current symptoms,” Dr Rimmer said that “all have”.
Dr Rimmer did not consider the recommended surgery to be “reasonably necessary and related to the 2005 injury”. That was because the tear of the anterior horn of the lateral meniscus was “an incidental finding and degenerative/constitutional in nature”. He thought Mr Diab’s condition, anteriorly-based knee pain secondary to quadriceps insufficiency, was a “non-operative condition”.
Based on Dr Rimmer’s report, CGU disputed liability in a s 74 notice dated 23 November 2012.
On 6 December 2012, Mr Diab saw Dr Leonard Kuo, orthopaedic surgeon. After taking a history of the 2005 injury and of Mr Diab’s continuing problems, Dr L Kuo said that Mr Diab required an arthroscopic assessment to assess the lateral meniscus, which he arranged for 11 December 2012.
Dr L Kuo’s operation report, dated 11 December 2012, confirmed the presence of an anterior horn tear of the lateral meniscus, which was resected. The patellofemoral joint demonstrated Grade 1 changes without focal defect. After this surgery, Mr Diab developed deep vein thrombosis, which required further hospitalisation and treatment.
In an Application to Resolve a Dispute filed in the Commission on 28 March 2013, later amended, Mr Diab claimed weekly compensation from 11 December 2012 to 30 June 2013 (the period required to recover from the surgery and its complications), plus $2,977.50 (plus “Medicare notice of charge”) for the hospital and related expenses associated with his knee surgery and the subsequent complications.
Relying on the opinion of Dr Rimmer in his report of 2 November 2012, CGU disputed liability for the claim.
On 14 January 2014, Dr Rimmer provided a supplementary report in which he confirmed his previous opinion. He added that the repeated events at work served to aggravate the pre-existing degenerative changes in Mr Diab’s left knee. However, there was no “surgical pathology present warranting an arthroscopy”.
The parties agreed that the only issue in dispute was whether the cost of medical treatment was reasonably necessary as a result of the accepted injuries to Mr Diab’s left knee. If Mr Diab succeeded on that issue it was agreed that he was entitled to weekly compensation, though the amount of that compensation and the exact period was not agreed.
The Commission referred that question to an Approved Medical Specialist (AMS), Dr Ian Meakin, who examined Mr Diab on 11 March 2014 and issued a non-binding Medical Assessment Certificate on 26 March 2014. Dr Meakin concluded that tear of the anterior horn of Mr Diab’s lateral meniscus was a “constitutional matter” and, therefore, the surgery on 11 December 2012 was not reasonably necessary by reason of the accepted work injuries.
On 23 May 2014, Dr Bodel, orthopaedic surgeon, examined and reported on Mr Diab at the request of Mr Diab’s solicitors. Dr Bodel felt there was a direct causal link between the episodes of injury at work and Mr Diab’s “ongoing pathology in the left knee”. He said that the arthroscopic treatment was “reasonable and necessary for the injury that [Mr Diab] suffered at work and that injury was confirmed clinically by Dr [L] Kuo and on MRI scan”.
In a reserved decision, delivered on 22 July 2014, the Arbitrator said that the evidence from Mr Diab’s treating surgeons was “lacking” ([129]) because neither Dr Fritsch nor Dr L Kuo opined that the surgery performed by the latter was reasonably necessary as a result of injury arising out of or in the course of Mr Diab’s employment. She found the evidence from Dr Meakin and Dr Rimmer to be “persuasive” ([138]).
The Arbitrator did not find Dr Bodel’s evidence persuasive because, she said, he provided no reason for his opinion, other than to say that the injury was confirmed clinically by Dr L Kuo and on MRI, and that the arthroscopy confirmed a surgically treatable tear of the lateral meniscus. In addition, Dr Bodel did not address the opinions of Dr Rimmer and Dr Meakin that the tear was constitutional and not related to the injury.
The Arbitrator concluded that the surgery was not reasonably necessary as a result of the pleaded injuries. It followed that, as the time off work was directly related to the surgery, Mr Diab had no entitlement to weekly compensation. The Arbitrator made an award for the respondent.
Mr Diab has appealed the Arbitrator’s determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal were initially identified to be whether the Arbitrator erred in:
(a) finding that the evidence from Dr Fritsch and Dr L Kuo was “lacking” (evidence from Dr Fritsch and Dr L Kuo);
(b) ignoring the materially relevant evidence that Mr Diab benefitted from the surgery, and
(c) preferring the opinion of Dr Rimmer when his conclusion was based on an opinion that was against the weight of the evidence.
Though not identified as a ground of appeal, counsel for Mr Diab, Ms Eraine Grotte, contended in the body of her written submissions, and in her oral submissions on appeal, that the Arbitrator also erred in saying that Dr Bodel gave no reason for his opinion.
At the oral hearing, Ms Grotte raised two further grounds of appeal, namely, that the Arbitrator failed to deal with inconsistencies in Dr Rimmer’s reports and that the Arbitrator erred in misapplying the relevant test.
As the appeal can be determined on the basis of the challenge to the assessment of the evidence of Drs Fritsch, L Kuo and Bodel, it is not necessary to deal with the other grounds.
EVIDENCE FROM DR FRITSCH AND DR L KUO
The evidence
In view of the issues on appeal, it is necessary to consider the medical evidence in detail.
To understand properly Dr Fritsch’s evidence it is necessary to consider first the MRI scan that was performed on 1 August 2012. The radiologist, Dr Wendy Brown, reported on the scan on 2 August 2012. She noted a clinical history of “[l]eft lateral joint line tenderness, feeling of clicking and giving way ? lateral meniscal tear”. She concluded that the scan showed:
“1. Vertical tear anterior horn lateral meniscus associated with intrameniscal cystic degeneration of the anterior horn and body segment. Possible horizontal tear [of the] posterior horn [of the] lateral meniscus although evaluation is limited by movement artefact. The tibial root attachment of the posterior horn of the lateral meniscus is small but no definite avulsion is seen.
2. Ganglion formation of the anterior cruciate ligament.
3. Mild chondral wear lateral facet of the patella and inner aspect [of the] medial femoral condyle.”
Dr Fritsch’s first report is dated 16 August 2012. In it he replied to an enquiry by CGU said to have been dated 10 October 2012 (it is unclear which date is incorrect, but nothing turns on this error). He was asked to respond to the following question:
“1. Your interpretation of the MRI scan, that being, could you please advise whether you believe the injury is an acute injury occurring within the last few months, or whether the MRI indicates long term degeneration? Could you please explain your answer?”
Dr Fritsch replied:
“The MRI demonstrates a tear in the lateral meniscus and a ganglion within the ACL [anterior cruciate ligament]. The ganglion formation would occur over a long period of time, however the meniscus tear (which is most symptomatic) can occur acutely even with a simple twisting motion. Other than the patient[’]s history it is not possible to determine from the MRI when the meniscus tear occurred.”
Significantly, Mr Diab’s history was that he first injured his knee when he twisted getting out of a vehicle in 2005 and felt a snap inside. Dr Bodel’s history was that Mr Diab had no previous problems with either knee. This was consistent with Dr Rimmer’s history that Mr Diab denied any previous history of injury to the left knee. Though Mr Diab’s statement did not deal with whether he had any symptoms in either knee prior to the 2005 incident, it is reasonable to conclude from the unchallenged medical histories, which are evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [75]), that he did not.
Dr Fritsch provided CGU with a longer report on 13 September 2012. He said that he had seen Mr Diab on that day and that Mr Diab had had another injury since he last saw him. He continued:
“To summarise [Mr Diab’s] history, in 2005 he had an injury whilst working as an NRMA Roadside Mechanic. He was twisting getting out of his car, and felt something snap inside. He had acute pain within the knee and reported this directly to his superiors. He was placed on light duties, and had a course of physiotherapy which settled much of his symptoms. He was able to return to work, and really had no problems until April of this year. Once again whilst getting out of a vehicle to help a stranded motorist, he twisted the left knee. He had acute lateral sided knee pain with clicking and catching. He went to a physiotherapist, and if anything he feels this made it worse and as such he eventually ended up seeing me at Royal Prince Alfred Hospital. I’ll arrange for him to get an MRI scan, and in the interim he’s had a third injury. This again at work, occurred on 25 August. He was helping a motorist who had locked themselves out of their car, and as he was walking around the vehicle slipped on a patch of oil. He landed injuring his right shoulder and right elbow, and exacerbating the pain within his left knee.
At present his knee remains very painful. He has localised lateral knee pain and clicking and catching in this region. He’s walking with a limp, and really [is] quite uncomfortable. He is still at work, doing all duties except anything requiring changing a flat tyre. He’s keen to continue working and would like to get back to his full duties.
[Mr Diab’s] walking with a significant limp today. His knee has a small effusion, and a range of motion from 5°–125° of flexion. He’s focally tender along the anterior and mid aspect of the lateral joint line, and McMurray’s test causes pain in this region. His ligamentous exam [sic] is normal with no instability. His calf is soft and non tender, and he’s neurovascularly [sic] intact.
[Mr Diab’s] MRI scan shows the tear in the anterior horn and body of the lateral meniscus, with a small associated parameniscal cyst. There’s also a ganglion within the anterior cruciate ligament, and some mild degenerative change particularly on the lateral facet of the patella.
[Mr Diab’s] knee symptoms are primarily due to the tear in the lateral meniscus. He has [a] history of several injuries involving twisting resulting in acute lateral sided knee pain. It remains localised to the site of the meniscal tear, and has associated mechanical symptoms. There is also a ganglion within his ACL, which can cause deep seated posterior pain but doesn’t seem to be terribly symptomatic at this stage.
The treatment for [Mr Diab’s] meniscal tear would be an arthroscopic partial meniscectomy. I’d remove the unstable components which should settle the mechanical symptoms and generally settle down his pain. Occasionally these tears in the anterior horn of the lateral meniscus can be a little more recalcitrant in terms of pain than the more common tears in the posterior meniscus. Nonetheless he’s now been struggling since April, and if anything his knee’s getting worse. I don’t think it will settle without surgical intervention.
We’re planning to proceed with an arthroscopic lateral meniscectomy as soon as we have approval from CGU. …”
Dr L Kuo wrote to Dr D Kuo on 6 December 2012:
“Thank you for asking me to see Mr Diab a 55-year old NRMA patrolman who has been troubled by pain in his left knee on and off since 2005. He first injured the knee whilst getting out of his patrol vehicle and was on restricted light duties for several weeks. He was able to return to work in a normal capacity but reports that the knee never returned to normality.
Over the last 12 months he has noticed a recurrence of symptoms. Pain is well localised to the lateral joint line and he has had three episodes of locking as he has gotten out of his vehicle. The knee may swell but does not give way. At night[,] pain may sometimes disturb his sleep. Although he feels that work has been a substantial contributing factor, the insurers have declined liability.
Clinically there is a small effusion in the knee. Alignment is normal. He has some tenderness in the lateral joint line and pain was reproduced with squatting. There was no crepitus. Full range of motion was present and there was tenderness over the lateral meniscus. McMurray’s sign was positive. His knee was stable.
MR demonstrates a tear involving the anterior horn of the lateral meniscus. Some mild chondral wear of the lateral facet of the patella was also present.
Mr Diab requires an arthroscopic assessment to assess the lateral meniscus. If a tear is confirmed this should be resected. …”
As previously noted, Dr L Kuo’s operation confirmed the presence of an anterior horn tear of the lateral meniscus, which was resected.
The Arbitrator’s reasons
This ground of appeal relates to the Arbitrator’s statements at [129]–[133], where she said:
“129.The evidence of the applicant’s treating surgeons is lacking, in that neither Dr Fritsch nor Dr L Kuo opines that the surgery performed by the latter was reasonably necessary as a result of injury arising out of or in the course of Mr Diab’s employment. In particular, there is no evidence from either that comments on the opinion of the AMS.
130.Dr Fritsch says that a meniscus tear can occur acutely with a simple twisting motion, but that other than from the patient’s history, it is not possible to determine from the MRI when the tear occurred (emphasis added).
131.The applicant submits that the doctor was not asked by CGU to opine on causation, and merely answered the question he was asked. That may be the case, but it would have been a simple matter for the applicant to have sought an opinion from Dr Fritsch as to whether, on the balance of probabilities, he believes that the meniscal tear occurred as a result of the applicant’s injury, or injuries.
132.Dr Fritsch opines that the applicant’s knee would not settle without surgery, but at no time says that the necessity for the surgery is related to the injury.
133.Dr [L] Kuo, also, while he agreed that the applicant required surgery, at no time opines that it is reasonably necessary as a result of injury arising out of or in the course of his employment with the respondent. I accept that the applicant had difficulty in obtaining a report from the doctor, but it is a matter for the applicant to determine the evidence on which he ultimately relies in support of his claim.”
Submissions
Ms Grotte submitted that the Arbitrator erred in her assessment of the evidence from Dr Fritsch and Dr L Kuo, ignored the opinions expressed by those doctors, and failed to make the compelling inferences that were available to her from their opinions.
She contended that the Arbitrator’s statement that the evidence for the causal link (between the injuries and the need for treatment) was lacking ignored the evidence from Dr Fritsch in his report of 13 September 2012. It was clear, applying commonsense and sound judgment, that Dr Fritsch considered the treatment proposed to be reasonably necessary to treat the symptoms of the injury sustained and there is no other conclusion available.
Mr Flett, counsel for the employer, submitted that the Arbitrator’s decision was correct, was consistent with the weight of the evidence and was not affected by any error. He added that the Arbitrator’s findings at [129]–[133] were consistent with the evidence and justified the finding the evidence from Dr Fritsch and Dr L Kuo was insufficient for Mr Diab to discharge the onus of establishing that the surgery was reasonably necessary as a result of his work injuries.
Discussion and findings
What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock) per Beazley JA (as her Honour then was) at [85] (Giles and Tobias JJA agreeing)).
Dr Fritsch’s evidence complied with this standard and the Arbitrator erred in dismissing his opinion by saying that it was “lacking” because it did not expressly deal with the ultimate question the Commission had to determine.
It is clear that Dr Fritsch had a generally accurate history of the work injuries and the effect that those injuries had on Mr Diab. In particular, he had a history that Mr Diab twisted his knee getting out of his vehicle in 2005, felt something “snap inside”, and had acute pain in his knee, which he reported to his superiors. In April 2012, Mr Diab again twisted his left knee getting out of a vehicle and again had “acute lateral sided knee pain with clicking and catching”. He suffered a further injury on 25 August 2012 when he slipped on oil and injured his right shoulder and right elbow, and exacerbated the pain in his left knee (whether this incident involved a further twisting injury is not critical).
On 13 September 2012, Mr Diab presented to Dr Fritsch with a “very painful” left knee. Significantly, his pain was localised to the lateral part of the knee and there was clicking and catching in that region. Mr Diab walked with a significant limp and was “quite uncomfortable”. His knee had a small effusion and reduced range of movement. He was focally tender along the anterior and mid aspect of the lateral joint line and the McMurray’s test (a test for a tear of the medial meniscus) caused pain in that region.
After referring to the findings on MRI scan (see [30] above), Dr Fritsch made the following points:
(a) Mr Diab’s knee symptoms were “primarily due to the tear in the lateral meniscus”;
(b) Mr Diab had a “history of several injuries involving twisting resulting in acute lateral sided knee pain”;
(c) the pain “remaine[d] [as at 13 September 2012] localised to the site of the meniscus tear”, and
(d) Mr Diab had “associated mechanical symptoms” (in his left knee).
Dr Fritsch then said that the treatment for Mr Diab’s meniscus tear would be an arthroscopic partial meniscectomy. Thus, based on his history (twisting injuries causing acute knee pain, which has not been challenged), his findings on examination (pain localised to the lateral joint line and a McMurray’s test that caused pain in that region) and the investigations (the MRI scan, which showed a vertical tear of the anterior lateral meniscus), he recommended that Mr Diab have the surgery he ultimately had.
Dr Fritsch also gave evidence that a meniscus tear “can occur acutely even with a simple twisting motion”. It will be recalled that Mr Diab experienced acute pain in his left knee when he twisted getting out of his (work) vehicle in 2005 and again in 2012. Thus, the history and Dr Fritsch’s findings were perfectly consistent with a meniscus tear having occurred in one or other of the twisting incidents that occurred at work in 2005 and in 2012.
In the circumstances, though Dr Fritsch did not use the terminology in s 60, and did not expressly say that the necessity for the surgery was related to the injuries, the only reasonable inference is that that was his view and the Arbitrator erred in failing to draw that inference. While it was unfortunate that Dr Fritsch did not express himself in the terms of the legislation, in the circumstances of the case, that was not fatal to the claim and, contrary to the Arbitrator’s conclusion, his evidence was not “lacking”.
It was no answer to Dr Fritsch’s evidence to say, as the Arbitrator said, that it would have been a simple matter for Mr Diab to have sought an opinion from Dr Fritsch on whether the meniscal tear occurred as a result of the work injuries. The doctor’s evidence had to be assessed on the reports presented. When that evidence is properly considered and assessed, there is only one conclusion open, namely, that he supported the connection between the injuries and the need for surgery. If there were any doubt that his opinion was that the arthroscopy was necessary, he added that he did not think that Mr Diab’s condition would settle without surgical intervention.
The Arbitrator acknowledged that Dr Fritsch said a meniscus tear could occur acutely, with a simple twisting motion. However, she failed to acknowledge the significance of that statement in light of the evidence that Mr Diab felt something “snap” inside his knee when he twisted getting out of a vehicle in 2005, the evidence of continuing symptoms since that time and the evidence of further twisting incidents in the course of his employment in 2012, which caused further pain in the same part of the left knee. This evidence, considered with the findings in the MRI scan, led inescapably to only one conclusion, namely, that Mr Diab suffered a meniscus tear in one or other of his work injuries.
The same conclusion applies to Dr L Kuo’s evidence. He also took a generally accurate history of Mr Diab’s 2005 injury and that, consistent with Mr Diab’s evidence, the knee did not return to “normality” after that injury. Though he did not have a history of the specific incidents in 2012, he did have a history that Mr Diab noticed a recurrence of symptoms in the 12 months up to December 2012 and had had three episodes of locking as he got out of his vehicle.
Like Dr Fritsch, Dr L Kuo found Mr Diab to have a positive McMurray’s test. He noted that the MRI scan demonstrated a tear involving the anterior horn of the lateral meniscus. Dr L Kuo concluded that Mr Diab “require[d] an arthroscopic assessment to assess the lateral meniscus” and, if the tear was confirmed, it should be “resected”. The surgery confirmed the presence of the tear, which he resected. Mr Diab gave evidence that since the surgery his condition had improved.
Thus, based on his history (which was less detailed than that recorded by Dr Fritsch, but included the history of the 2005 injury and a lack of “normality” thereafter), his findings on examination (which were similar to Dr Fritsch’s findings, that is, of tenderness in the lateral joint line and of a positive McMurray’s test), and the investigations (the MRI scan, which showed a vertical tear of the anterior lateral meniscus), Dr L Kuo said that surgery was “require[d]”. The purpose of the surgery was to “assess the lateral meniscus”.
Given the matters outlined in the preceding paragraph, the only reasonable inference from Dr L Kuo’s evidence is that he believed the surgery to be necessary (though he used the word “require[d]”) to treat Mr Diab’s condition (the torn meniscus), which condition had, on the history he took, been caused by the work injuries. I acknowledge that Dr L Kuo did not expressly say that the surgery was reasonably necessary as a result of the subject injuries. However, for the reasons explained, in the circumstances of this case, that is the compelling and logical inference from his evidence and the Arbitrator erred in not drawing that inference.
The absence of any comment by Dr Fritsch or Dr L Kuo on Dr Meakin’s opinion did not justify the Arbitrator’s statement that their evidence was “lacking”. While their failure to comment on Dr Meakin’s opinion may have been a factor to consider when weighing the evidence overall, that is not what the Arbitrator did. She effectively, but erroneously, dismissed their evidence as having no weight.
It follows that the Arbitrator erred in stating that the evidence from the treating surgeons was “lacking”. It is clear that this error has affected the outcome. This follows from the Arbitrator’s statement at [142] that “[i]n the absence of any definitive opinion from either treating specialist” she was left (only) with the opinions from the qualified specialists. As she also rejected the evidence from Dr Bodel, which is discussed below, that only left the evidence from Dr Rimmer and Dr Meakin, which the Arbitrator accepted.
DR BODEL’S EVIDENCE
Dr Bodel’s reports
Dr Bodel took a history of the twisting injury in 2005. Though Dr Bodel recorded that Mr Diab “recovered” and went back to work, he noted, consistent with Dr L Kuo’s history and Mr Diab’s evidence, that Mr Diab’s knee was “never entirely normal”, though he was able to cope quite well.
Dr Bodel wrongly recorded that the second injury occurred on 11 December 2012, but neither side has suggested that that was a relevant error. The second injury was another twisting incident that caused pain and swelling in the knee. Under “Summary of Injuries” Dr Bodel noted, consistent with the evidence, “[r]ecurring episodes of injury to the left knee”. He understood the nature of the dispute, namely, that it was a dispute over liability in regards to medical management of the injury.
Commenting on the “relevant documentation”, Dr Bodel said:
“I have carefully perused the documentation provided.
I note an assessment by Dr Stephen Rimmer dated 14 January 2014 and he concludes that he felt that when he examined this gentleman prior to the surgery that there was no surgically treatable lesion.
The surgery has showed that there was a lateral meniscal tear which was treated by appropriate arthroscopy but that was complicated by the development of the deep venous thrombosis.
An assessment for the Workers’ Compensation Commission done by Dr Meakin is also noted and that was a General Medical Dispute in regards to the liability for the cost of the surgery.
A statement by Mr Diab is noted and that is consistent with this gentleman’s clinical circumstance.
The hospital documentation is also consistent with the treatment.
The arthroscopic photographs and the arthroscopic report of injury confirmed that at the time of the surgery there was a tear of the anterior horn of the lateral meniscus which was resected arthroscopically.”
Dr Bodel then dealt with several specific questions put to him. In the course of doing so, he said that he had reviewed the MRI scan, which “confirmed the meniscal pathology” and he noted the arthroscopic report “also indicates that there was pathology in the lateral meniscus”. His diagnosis was that Mr Diab suffered a “tear of the lateral meniscus”. He added that there was a “direct causal link between the episodes of injury that occurred at work with the [respondent] and [Mr Diab’s] ongoing pathology in the left knee”.
Dealing with Mr Diab’s treatment, Dr Bodel said:
“The arthroscopic treatment undertaken by Dr [L] Kuo in my view was reasonable and necessary for the injury that he suffered at work and that injury was confirmed clinically by Dr [L] Kuo and on MRI scan.
The arthroscopy also confirmed that there was a surgically treatable tear of the lateral meniscus.”
In reply to a question about whether Mr Diab was likely to require operative procedures in the future, Dr Bodel said:
“The operative [sic, operation] undertaken is [sic, was] reasonable and necessary for the management of this injury.” (The alternative is that Dr Bodel intended to say that the “operative treatment undertaken was reasonable and necessary” but nothing turns on this.)
In a separate report, dealing with whether Mr Diab has suffered a whole person impairment as a result of his injury, Dr Bodel said:
“This gentleman’s injury to the left knee, resulting in the need for the arthroscopy, has arisen as a consequence of the employment with [the respondent].”
The Arbitrator’s reasons
Having summarised Dr Bodel’s evidence earlier in her decision, the Arbitrator analysed that evidence at [143]–[144]. She said:
“143.I do not find Dr Bodel’s opinion persuasive. He opines that the surgery was ‘reasonable and necessary’ for the injury that the applicant sustained at work, but provides no reason for his opinion, other than to say that ‘that injury’ was confirmed clinically by Dr Kuo and on MRI; and that arthroscopy confirmed a surgically treatable tear of the lateral meniscus.
144.Dr Bodel does not address the opinions of Dr Rimmer and Dr Meakin, to which he clearly had access, that the tear of the lateral meniscus was constitutional, and not related to injury.”
Submissions
Ms Grotte submitted that Dr Bodel considered all the relevant evidence and provided an opinion based on his experience and expertise. She said that brevity and conciseness ought not be mistaken for insufficiency.
After referring to Dr Bodel’s evidence, Ms Grotte submitted that the Arbitrator’s finding that the evidence of Mr Diab was lacking as to causation and reasonable necessity was:
“wrong and, either contrary to the evidence or contrary to compelling inferences that were available to be drawn from the evidence of [Mr Diab], and therefore ‘glaringly improbable’ (Fox v Percy (2003) 214 CLR 118 at 128).”
Mr Flett submitted that just because Dr Bodel expressed an opinion did not mean the Arbitrator had to accept that opinion. She was entitled to accept the evidence from Dr Rimmer and Dr Meakin.
Discussion and findings
The Arbitrator erred in saying that Dr Bodel provided no reason for his opinion that the surgery was “reasonable and necessary”. Consistent with Hancock (see [41] above), Dr Bodel set out the history he took from Mr Diab (which included the history of the injury in 2005 and of “recurring episodes of injury to the left knee”), his findings on examination (which were of limited weight, since the surgery had already taken place), and the findings in the MRI scan of a torn meniscus and the findings at arthroscopy.
Dr Bodel then concluded that the diagnosis was a “tear of the lateral meniscus” and that there was a “direct causal link” between the episodes of injury and pathology (revealed on the MRI scan) in the left knee. He also noted that the arthroscopy confirmed that there was a surgically treatable tear of the lateral meniscus.
Though there are obvious typing errors in Dr Bodel’s answer to one of the questions put to him (see [62] above), however it is interpreted its meaning is clear. The answer, when properly understood, addressed the issue that influenced the Arbitrator to reject Dr Bodel’s evidence, namely, whether he gave a reason for his opinion that the surgery was “reasonable and necessary”. He said that the surgery was “reasonable and necessary for the management of this injury” (emphasis added). Allowing for the fact that Dr Bodel applied an incorrect (but more demanding) test (“reasonable and necessary”) rather that the correct test of “reasonably necessary”, his evidence was sufficient to satisfy his obligation to explain the basis for his conclusion.
What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 79 FLR 1 at [631]). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
Applying the above authorities, Dr Bodel’s explanation for his opinion comfortably satisfied the requirement that he explain the basis for his conclusion and the Arbitrator erred in rejecting his evidence on the ground that he had not.
CONCLUSION ON ERROR
The error with respect to Dr Bodel’s evidence, along with the error in saying that the evidence from the treating specialists was “lacking”, has affected the outcome because it meant that the Arbitrator wrongly assessed the dispute on the basis that (in effect) Mr Diab had no relevant evidence in support of his claim. As a result, the matter must be re-determined. It follows that it is not necessary to consider the other grounds of appeal.
In the event that relevant error was established, the parties consented to me re-determining the matter. As there are no credit issues involved and as neither side wishes to call any additional evidence, that is the course I propose to adopt.
RE-DETERMINATION
Reasonably necessary
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
The Commission has applied this test in several cases (see, for example, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).
In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
The Court of Appeal considered the meaning of “reasonably necessary” in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were “reasonably necessary” having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
Grove J referred to the dictionary definition of “necessary” as being “indispensable, requisite, needful, that cannot be done without” (Shorter Oxford English Dictionary, 3rd ed) and “that cannot be dispensed with” (Macquarie Dictionary).
His Honour added, at [23]–[24]:
“23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of ‘necessary’.”
It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner “having regard to the nature of the worker’s incapacity” (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word “reasonably” was “effectively used as a diminutive and moderated the effects of the word ‘necessary’”.
The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, “reasonably necessary” is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
Reasonably necessary does not mean “absolutely necessary” (Moorebank at [154]). If something is “necessary”, in the sense of indispensable, it will be “reasonably necessary”. That is because reasonably necessary is a lesser requirement than “necessary”. Depending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is “reasonable and necessary”, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that “the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement”. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression “no reasonable prospect” should be understood, “[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content”.
I intend to apply the above approach in the present matter. This approach was canvassed with the parties at the oral hearing of the appeal and neither side raised any objection.
Discussion and findings
The parties’ submissions, both on appeal and before the Arbitrator, have been recorded and will not be repeated here, though I have carefully considered all points argued. Suffice to note that the respondent’s case was and is that the most probative evidence supports a finding that the need for the surgery did not result from any work injury.
The respondent contended that the evidence from Dr Fritsch and Dr L Kuo did not state that the need for the surgery was reasonably necessary as a result of the injuries and that the damaged meniscus was degenerative and had not been caused by the work injuries.
It challenged Dr Bodel’s evidence on the ground that he had not explained the basis for his opinion and urged the acceptance of the opinions of Dr Rimmer and Dr Meakin. In addition, Mr Flett submitted that Dr Fritsch’s evidence should not be accepted because he failed to take into account that the meniscus was degenerate.
I do not accept the respondent’s submissions.
I have already dealt with the evidence from Dr Fritsch and Dr L Kuo. For the reasons previously explained, the only reasonable inference from their evidence is that they were both of the view that the surgery was necessary, in the sense that it was “required”, because of the presence of the damaged meniscus, which had been caused by the work injuries.
The submission that Dr Fritsch failed to take into account that the meniscus was degenerate was based on an acceptance of the evidence from Dr Rimmer and Dr Meakin that that was in fact the case. For the reasons explained below, that evidence is flawed and I do not accept it.
I will first consider Dr Meakin’s report. Dr Meakin agreed with Dr Rimmer that the tear of the anterior horn of Mr Diab’s lateral meniscus was constitutional and therefore unrelated to any of Mr Diab’s work injuries.
Dr Meakin added:
“Degenerative tears of the anterior third of the menisci, medial or lateral, are essentially degenerative and usually cause no symptoms. It is my opinion that [Mr Diab’s] clinical symptoms from 3rd January 205 [sic] through to and including 25th August 2012 emanated from the retropatella surface. [Mr Diab] subsequently underwent arthroscopic surgery on 11th December 2012 and reports a significant improvement in knee function and knee pain.”
Dr Meakin felt that that the significant improvement noted by Mr Diab after the operation was “most likely related to the arthroscopic wash-out of chemical debris within the knee rather than excision of a mobile fragment at the site of the anterior lateral meniscus tear”.
After setting out his opinion that the surgery was not reasonably necessary by reason of the work related injuries, Dr Meakin said:
“Section 60 of the Workers Compensation Act 1987 sets out four criteria for treatment to be considered reasonably necessary:
1.be appropriate for your injury: it is my opinion and also the opinion of Dr Stephen Rimmer, Orthopaedic Surgeon, in his reports that the tear relating to the anterior horn of the lateral meniscus was a constitutional matter and usually presents with no painful symptoms or mechanical issues
2.the claimant has progressed in that he states that his symptoms have decreased by 90%. This may relate to the arthroscopic wash-out, as well as the passage of time, but in my opinion it is not related to the performing of a partial anterior lateral meniscectomy
3.be cost effective and accepted treatment type: any treatment is cost effective if it works. I do wonder whether the attending orthopaedic surgeons were performing the arthroscopy on the preface that they would find more significant other pathology which was not the case. MRI scans of knees are not 100% efficient
4.reductions in pain or support from nominated treating doctor alone does not meet the requirement of reasonable and necessary. The claimant does report a significant reduction in pain and he did have support from 2 nominated treating doctors that arthroscopy would assist.”
There are a number of problems with these statements, which lead me to reject Dr Meakin’s conclusions. First, s 60 does not set out four criteria for treatment to be considered reasonably necessary.
Second, Dr Meakin’s opinion that the torn meniscus was a constitutional matter, which usually presents with no painful symptoms, ignored the history that Mr Diab had no knee symptoms before 2005 and continuing symptoms thereafter. It also ignored the nature of the work injuries, which involved twisting, and the symptoms they caused, namely, acute pain in the lateral aspect of the knee. It follows that the torn meniscus was clearly not a constitutional matter.
Third, given the findings at surgery, which confirmed the MRI scan and the clinical findings on examination, the history of symptoms after the accepted work injuries and the improvement after surgery, the logical and correct conclusion is that the improvement was because of the surgery, which treated the damaged meniscus and provided wash-out of the knee joint. In any event, once it is accepted, as I do accept, that the surgery was reasonably necessary as a result of the symptoms caused by the work injuries, it does not matter whether the improvement was from the meniscectomy or from the wash-out.
Fourth, while I agree that, on its own, a reduction in pain after the particular treatment does not necessarily “meet” the test of reasonably necessary in s 60, it is a factor that can be considered in determining that issue. More importantly, it should be considered in light of the expert evidence and relevant history of the development of the symptoms. Given the history of Mr Diab’s symptoms, both before and after the operation, the better view is that, on the balance of probabilities, the improvement after the surgery was a direct result of the meniscectomy.
Last, in his fourth point, Dr Meakin incorrectly stated the “requirement” (in s 60) to be “reasonable and necessary”. As noted above, the correct test is that the treatment be “reasonably necessary” as a result of the injury. That is a different, less demanding test.
Dr Rimmer’s evidence, which is summarised at [9]–[11] and [17] above, is similarly unpersuasive. While he conceded that all of the work injuries caused Mr Diab’s symptoms, he maintained that the torn lateral meniscus was “an incidental finding and degenerative/constitutional in nature”. That conclusion has ignored Mr Diab’s unchallenged history of no symptoms before 2005 and continuing problems after it, which worsened with further twisting injuries at work. To say that there was no surgical pathology present warranting an arthroscopy has also ignored the clear findings at the surgery, which confirmed the MRI scan, and the benefit Mr Diab received from the surgery.
Dr Rimmer’s assertion that the tear of the lateral meniscus “does not have the appearance consistent with an acute injury” has ignored the evidence of the 2005 incident, in which Mr Diab twisted his knee, felt a “snap inside” and had acute pain within the knee.
For these reasons, the evidence from Drs Meakin and Rimmer is unpersuasive and I do not accept it.
This leaves the evidence from Dr Bodel, Mr Diab’s qualified specialist. After taking a largely accurate history, Dr Bodel diagnosed Mr Diab to have suffered a tear of the lateral meniscus and added that there was a “direct causal link between the episodes of injury that occurred at work with the [respondent] and [Mr Diab’s] ongoing pathology in the left knee”. The ongoing pathology was the torn meniscus. He concluded, applying the wrong (more demanding) test, that the surgery was “reasonable and necessary for the management of [the] injury” (the injury being the damaged meniscus).
Given Dr Bodel’s history that Mr Diab had no symptoms in his left knee prior to the twisting injury in 2005, the history of continuing symptoms thereafter (albeit not disabling), the further twisting injuries in 2012 (which caused acute lateral sided knee pain, the same location as previously identified), the findings on MRI scan of a torn meniscus (confirmed at surgery), Dr Bodel’s opinion that the lateral meniscal tear was treated by “appropriate arthroscopy”, Dr Bodel’s evidence, which I accept, provides convincing support for the conclusion that, on the balance of probabilities, the surgery was reasonably necessary as a result of the work injuries.
The additional evidence that supports this conclusion is the evidence from Dr Fritsch, which I accept, that Mr Diab’s condition would not settle without surgery, the evidence that the treatment improved Mr Diab’s symptoms, and the evidence from Dr L Kuo that arthroscopy was the appropriate treatment for Mr Diab’s injury (which was the damaged meniscus). I have reached this conclusion notwithstanding the fact that neither Dr Fritsch nor Dr L Kuo expressly referred to the phrase “reasonably necessary” in their reports. As explained earlier in this decision, in the circumstances of this case, that omission was not fatal because the only reasonable inference from their evidence is that that was their view.
It is appropriate to recall the following statement by Glass JA in Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190 at 197, though I have not relied on it in the present case:
“The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465 or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.”
The drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience” (G v H [1994] HCA 48; 181 CLR 387 at 390). In a civil case, “you need only circumstances raising a more probable inference in favour of what is alleged” (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5).
Moreover, as explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 19 NSWCCR 385; 49 NSWLR 262 at [91] “[c]ausation, like any other fact can be established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’, to use Wigmore’s simile: Wigmore on Evidence, 3rd ed (1981) vol 9 at 412-444 [2497] referred to in Shepherd v The Queen (1990) 170 CLR 573 at 579”.
Though it is not necessary to say any more, for completeness I add that, considering the matters listed at [88], the arthroscopy was reasonably necessary because it was appropriate treatment for the pathology found (a damaged meniscus), alternative treatment would not have relieved Mr Diab’s symptoms, the treatment was effective to significantly improve Mr Diab’s symptoms, and three experts considered it appropriate and likely to be effective. No issue arose as to the cost of the surgery or the reasonableness of that cost compared to alternative treatment.
CONCLUSION ON THE RE-DETERMINATION
The appeal is successful. Considering the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy (2003) 214 CLR 118 at [31]) taken together with the expert evidence, the compelling conclusion is that Mr Diab’s surgery was reasonably necessary as a result of his accepted work injuries and that is the finding I make.
As the parties could not agree on the exact period of the claim, or the appropriate wage rates, it is appropriate that all outstanding matters be remitted to a different Arbitrator for determination.
DECISION
The Arbitrator’s determination of 22 July 2014 is revoked and the matter is remitted to a different Arbitrator for determination of all outstanding issues in accordance with the reasons in this decision.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
10 November 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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