Eddy v The Trustee for the Packcentre Unit Trust ATF the Packcentre Unit Trust
[2023] NSWPIC 374
•26 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Eddy v The Trustee for The Packcentre Unit Trust ATF The Packcentre Unit Trust [2023] NSWPIC 374 |
| APPLICANT: | James Eddy |
| RESPONDENT: | The Trustee for the Packcentre Unit Trust ATF the Packcentre Unit Trust |
| Member: | Lea Drake |
| DATE OF DECISION: | 26 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for prospective treatment expenses being the cost of proposed bilateral hip surgery; the applicant had an underlying and asymptomatic condition of avascular necrosis; whether the need for surgery arose from a workplace injury; if so was it the main contributing factor; Held – found the workplace injury was the main contributing factor to the aggravation of the underlying disease; the need for surgery was the direct result of the aggravation; respondent ordered to pay for the bilateral hip replacement surgery. |
| determinations made: | The Commission determines: 1. The work incident on 10 March 2022, when the applicant tripped on a forklift and came down hard, aggravated his pre-existing and asymptomatic disease of avascular necrosis. 2. The work incident was the main contributing factor to the aggravation and acceleration of his underlying condition. 3. The applicant’s need for bilateral hip surgery arose as a result of the work incident. 4. The respondent is liable for any reasonable medical expenses arising from bilateral hip surgery proposed for the applicant as recommended by his treating medical practitioners. 5. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
James Eddy (the applicant) was injured at The Trustee for the Packcentre Unit Trust ATF The Packcentre Unit Trust’s (the respondent) premises on 10 March 2022 when he caught his heel on a forklift when alighting and stepped down hard (the work incident). The applicant requires bilateral hip surgery. There is no dispute that the surgery is reasonably necessary. The applicant claims that the incident at work was the main contributing factor to the aggravation of a pre-existing and asymptomatic disease of avascular necrosis. The respondent denies a causal connection between the fall at work and the necessity for the surgery and denies liability for the cost of the surgery.
ISSUES FOR DETERMINATION
The parties agree that the issue in dispute is whether the work incident on 10 March 2022 was the main contributing factor giving rise to the need for bilateral hip replacement surgery.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered by me in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to Application for Resolution of Dispute (Reply) and attached documents.
RELEVANT LEGISLATIVE PROVISIONS
The Workers Compensation Act 1987
“Section 4
Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
(my emphasis)
CONSIDERATION
The applicant’s submissions
The applicant had no history of pain in his hips prior to the work incident.
There is nothing of significance in the summary of his past medical treatment history which is set out in the notes of his treating general practitioner and spans the period from 23 August 2004 until 16 January 2023.[1]
[1] ARD page113.
The applicant sought treatment promptly following the work incident.
His history is consistent with an aggravation of an underlying disease.
The respondent’s documents refer to hip pain occurring immediately following upon the work incident.[2]
[2] REPLY pages 1 and 5.
The respondent’s s 78 Notice does not take note of and consider the X-ray report of 23 March 2022.
By 9 January 2023 the applicant had severe pain in his hips and lower back and has become housebound.
The need for surgery is pressing.
The respondent’s submissions
The respondent relied on a note forwarded by Ms Erin Celic, rehabilitation provider, all conveying the results of a discussion with Dr Khatib to create doubt about the effect of the workplace incident as an aggravation. This relevant section of the note is extracted below:
“Dr Khatib advised Mr Eddy has a bilateral hip injury with necrosis of the head of his femur which is causing his pain symptoms. Dr Khatib explained in layman's terms that Mr Eddy's head of both femur has not been getting blood supply therefore, there's death of the bone tissue. Dr Khatib advised this injury may be a result of his alcohol consumption history and/or smoking. IOH queried whether it would have been a result of his workplace injury. Dr Khatib advised the mechanism of injury (fall) isn't possible for his hip injury and believes this has been developed over time.”
(my emphasis)
The respondent also relied on a report of Dr Khatib which contains a reference to the applicant’s smoking cigarettes and alcohol intake as follows:
“He is a smoker of 20-40 cigarettes per day and he drinks at least two to three
drinks per day. He has done so for at least the last 20 years.
…
I have counselled James on this and I have explained to him that this is likely due to his
ongoing alcohol use rather than a work related injury.”
The respondent also took the Commission to an entry in the applicant’s treating general practitioner’s notes dated 19 November 2020 confirming a diagnosis of gout and a prescription of prednisone.
The applicant’s response
The applicant rejects the interpretation of Dr Leicester’s report relied upon by the respondent. The applicant submits that it is clear from the report that the doctor only considered whether the applicant’s avascular necrosis was caused by the workplace incident. It is not the applicant’s case that his avascular necrosis was caused by the workplace incident. The applicant claims an aggravation to his underlying disease for which he now needs surgery. His claim is that the work incident was the main contributing factor to the aggravation of his pre-existing and asymptomatic disease of avascular necrosis.
The applicant submits that no weight can be given to the email from Ms Celic, a rehabilitation consultant, when the treating orthopaedic surgeon was not part of the conversation.
The applicant submits that no weight should be given to the MRI when the technician did not have any clinical history in relation to the work incident.
The applicant also submits that the reference to gout in the general practitioner’s notes does not have any relevance except to establish that the applicant had once had gout.
In relation to the submission of the respondent that the applicant would in any event have come to surgery at some stage in the future, the applicant submits that the Commission is obliged to apply a commonsense test of causation and it is clear that the workplace incident materially contributed it to the need for surgery.
Finding
I am persuaded by and rely on the opinion of Dr Giblin, orthopaedic surgeon. In his report of 8 February 2023 Dr Giblin provided the following opinion to the respondent:
“It is my opinion this gentleman's injuries are consistent with the accident described, he sustained an aggravation of pre-existing avascular necrosis. That aggravation is permanent to the extent that he now requires bilateral total hip replacements. His initial x-rays on the 22/3/2022 do not indicate any collapse of the femoral head etc., whereas the x-rays of the 24th August 2022 show marked volume loss and collapse and flattening of both femoral heads, indicating there has been a significant deterioration of his hips five months post-injury. I consider that deterioration to have been due to the accident of the 10 th March 2022.
…
b) Whether our client's employment was the main contributing/actor to our client's subject injury and/or condition, subsequent incapacity and need/or treatment;
I consider Mr. Eddy's employment to be the main contributing factor causing his incapacity and the need for treatment.
(c) We refer your attention to tl,e report from Dr. Andrew Leicester. Dr. Leicester comments ‘his work injury may well have aggravated his avascular necrosis but unfortunately there is no obvious cause linking the injury and the osteonecrosis.’ Do you believe that our client's work injury has aggravated, accelerated, exacerbated, or caused a deterioration of his pre-existing condition? If so, do you believe this aggravation, acceleration, exacerbation or deterioration to be ongoing?
I agree with Dr. Leicester, that his work is not the cause of the osteonecrosis and that he had the osteonecrosis before the fall, but the fall has caused that osteonecrosis to become symptomatic and significantly deteriorated, hence the change in his x-rays from March to August 2022, as mentioned in the body of the report. I am of the belief that the aggravation of the osteonecrosis is ongoing and is the cause for his current need for total hip replacements.”[3]
(my emphasis)
[3] REPLY page 30.
I reject the respondent’s reliance upon Dr Leicester’s report for the proposition that the applicant’s work incident was not the main contributing factor to the aggravation of the applicant’s disease. That was not the question asked of the doctor and I do not believe he addressed it. The doctor quite properly concluded that the work incident did not cause the applicant’s underlying condition. That is clear. It is not the case being argued. The real question was not clearly put to him.
I find the note from Ms Celik[4] conveying a discussion with Dr Khatib to be entirely unhelpful. A genera discussion about the possible causes of the applicant’s disease is interesting, but not relevant to the question of whether it could have been aggravated by the workplace incident and more importantly, whether the workplace incident could have been the main contributing factor.
[4] ARD page 43.
I am persuaded that although it refers to other possible causes of this condition the report of Dr Khatib[5] does not directly address the other possibility will i.e. an aggravation arising from the work incident. He deals with causation rather than aggravation. Also, also, he does not record an accurate description of the workplace incident. In his reports to the respondent the applicant provides a history of coming down hard and experiencing immediate pain.
[5] REPLY page 30.
The fact that the applicant’s condition may well have become manifest is not relevant. He developed pain and the onset of a rapid deterioration following the workplace incident. It is not helpful to speculate as to when these events might have occurred without the aggravation. No one is in a position to know that.
In Murphy v Aliti[6] Roche DP said:
“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[6] 2015 NSW PIC 49.
I am satisfied that the applicant’s need for surgery was necessary as a result of the workplace incident which aggravated his pre-existing and asymptomatic disease.
I am also persuaded by the applicants relevantly clear previous medical history, the applicant’s consistent post injury history, including the immediate onset of his symptoms following the work incident, that the work incident was the main contributing factor to the aggravation of the applicant’s pre-existing and asymptomatic disease of avascular necrosis.
SUMMARY
For the reasons set out above the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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