Elias v Line White Group Pty Limited
[2021] NSWPIC 404
•12 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Elias v Line White Group Pty Limited [2021] NSWPIC 404 |
| APPLICANT: | Nasser Elias |
| RESPONDENT: | Line White Group Pty Limited |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 12 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for declaration and orders pursuant to section 60(5) of the Workers Compensation Act 1987; claim for arthroscopy for right knee, PRP injections to left wrist, and facet joint blocks to the cervical spine; whether inconsistencies in applicant’s earlier statement regarding an earlier claim prejudiced his application; whether referral to unserved material rendered respondent’s medico-legal expert inadmissible; regulation 44 of the Workers Compensation Regulation 2016 applicable to respondent’s qualified specialists; Held - inconsistencies relied on irrelevant to issues before Commission; objective evidence of need for treatment from many medical practitioners; respondent medico-legal expert report admitted as probative value a question of weight; respondent expert rejected as to whether the treatments were reasonably necessary; award applicant. |
| DETERMINATIONS MADE: | 1. The following treatment proposed is reasonably necessary: (a) the right knee arthroscopy as proposed by Dr George Kirsh on 2 November 2020; (b) the left wrist PRP injections as proposed by Dr Reitz on 19 January 2021, and (c) the cervical spine facet joint block as proposed by Dr Yu on 18 February 2021. |
| ORDERS MADE: | 1. The respondent will pay the costs of and associated with the above treatment. |
STATEMENT OF REASONS
BACKGROUND
Nasser Elias, the applicant, brings an action for declarations pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) regarding treatment for:
(a) a right knee condition in the form of an arthroscopy;
(b) a left wrist condition in the form of PRP injections, and
(c) a cervical spine condition in the form of facet joint block injections.
Dispute notices were issued on 26 February 2021 and 15 June 2021. The Application to Resolve a Dispute (ARD) and Reply were duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) are the three proposed forms of treatment reasonably necessary?
PROCEDURE BEFORE THE COMMISSION
This matter was heard by way of video conciliation and arbitration conference on
10 September 2021. Mr Bruce McManamey of counsel appeared for the applicant, instructed by Ms Marina Azer from Lyonheart Lawyers. Mr Tom Grimes of counsel appeared for the respondent, instructed by Mr Scott Murray of Lee Legal Group. The conference was also attended by Ms Anita Lee from the insurer. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Application to Admit Late Documents and attachments (ALD) from the applicant, and
(c) Reply and ALD from the respondent.
Oral Evidence
Leave was granted for Mr Grimes to cross-examine the applicant.
FINDINGS AND REASONS
The claim
The ARD form alleged that Mr Elias suffered injury on 26 June 2018 as follows:
“Worker suffered injury and/or aggravation of disease when he stepped on a stone which was loose causing him to twist his left ankle and fall backwards a distance of approximately 1.5 metres, hitting his head against a column under the house. A Large rock then fell on top of the Worker
and/or
Worker suffered injury and/or aggravation to the right knee consequent to the right knee giving way due to instability to the right knee, attributable to the injury on 26 June 2018
and
Worker suffered injury and/or aggravation to the left wrist as a result of landing on his outstretched left hand/wrist from recurrent falls
consequent to the right knee giving way.”
The injuries described were:
(a) cervical spine;
(b) lumbar spine;
(c) right shoulder;
(d) left hip;
(e) left elbow;
(f) left wrist, and
(g) right knee.
Prior injuries
In his statement of 2 July 2021, Mr Elias detailed a number of prior injuries and treatment he had received:[1]
[1] ARD page 12.
· 20 January 2006 – right shoulder and right thumb
· 23 May 2006 – right shoulder labral tear repair
· 28 March 2007 – right shoulder
· 5 May 2009 – further surgery to the right shoulder
· 6 May 2009 – left knee (whilst in hospital following the right shoulder surgery)
· 16 July 2009 – left knee arthroscopy
· 16 July 2009-12 May 2015 – consequential right knee condition
· 12 May 2015 – right knee arthroscopy
· “over time” – onset of consequential left shoulder condition
· 20 January 2016 – left shoulder arthroscopy
Prior proceedings
Mr Elias sought compensation in respect of some of these injuries in matter numbers 6800/11 and 6816/17. Matter number 6800/11 referred to the date of injury of 20 January 2006, and sought lump sum compensation. An AMS (as Medical Assessors were then known) was asked to assess whole person impairment (WPI) caused by injury to:
“Right upper extremity (right shoulder, right thumb)
digestive system.”
The AMS issued a Medical Assessment Certificate (MAC) on 14 December 2011 in respect of which the Workers Compensation Commission issued a Certificate of Determination (COD) on 17 February 2012 awarding compensation for an assessment of 7% WPI for injury to the right shoulder and right thumb, and 2% respectively digestive system.
Matter number 6816/17 also referred to the date of injury of 20 January 2006, and also sought lump sum compensation. An AMS was asked to assess WPI caused by the following injuries:
Right Upper Extremity (hand and shoulder)
Left Upper Extremity (shoulder)
Right Lower Extremity (knee)
Left Lower Extremity (knee)Digestive System
The assessment was issued on 31 January 2018, from which Mr Elias appealed to a Medical Appeal Panel (MAP). On 22 May 2018 the MAP issued its determination, and on 28 June 2018 the Workers Compensation Commission issued a COD which indicated that Mr Elias had been assessed as suffering 17% WPI arising from the injury of 20 January 2006. The appropriate deductions from the 2012 COD were made.
Dispute notices
The s 78 notice dated 26 February 2021 admitted “you sustained an injury to your right knee, left wrist, neck and left ankle during your employment with Line White Group Pty Limited on 26 June 2018”.[2]
[2] ARD page 2.
The s 78 notice alleged that Dr Todd Gothelf, the medico-legal expert retained by the respondent, had found that the right knee, left wrist, left ankle and neck injuries had resolved.
Any ongoing symptoms in the right knee were said by Dr Gothelf to have been caused by the pre-existing injuries and/or degeneration. Dr Gothelf noted that the treatment given to the left wrist had resulted in a resolution of symptoms. Similarly Dr Gothelf advised that the neck symptoms were as a result of degenerative arthritis, any cervical strain sustained on 26 June 2018 having resolved.
These reasons were repeated in the s 287A notice issued on 16 June 2021. The dispute was maintained because although Dr Uthum Dias, the medico-legal expert retained by the applicant, had a different view, Dr Gothelf’s opinion was preferable. Dr Gothelf was an Orthopaedic Surgeon, and Dr Dias was an Occupational Physician.
Admissibility issues
The respondent lodged two Medico-legal reports. One was from Dr Mark Jones, Sport and Exercise Physician dated 13 October 2020, and the other that of Dr Gothelf, dated 11 January 2021. The report of Dr Jones was withdrawn, as it offended the provisions of Regulation 44 of the Workers Compensation Regulation 2016.
Mr McManamey objected to the admission of Dr Gothelf’s report of 11 January 2021, on the basis that Dr Gothelf had been supplied with surveillance material, on which he had commented when that material had not been served or relied on by the respondent.
I rejected the application, noting that it was the practice within the Commission to permit evidence to be tendered and matters regarding inadmissibility usually went to weight.
I acknowledged the force of Mr McManamey’s argument, but I did not accept his submission that therefore the whole of Dr Gothelf’s report was inadmissible.Mr Grimes objected to the admission of the documents contained in the applicant’s ALD of
2 September 2021. In an ex-tempore judgement I admitted them to the proceedings.
Cross examination
Cross examination was permitted, as there was some confusion as to whether Mr Elias had suffered another injury to his right knee, which he had not hitherto mentioned. In the MAC of 14 December 2011, the AMS took a history of this injury. The AMS said:[3]
“Mr Elias had a previous injury to his right knee which was a worker’s compensation issue when he slipped at work. He was off work for about three months. He had an arthroscopy performed at that time by Dr Kirsh. He received $60,000 compensation. He stated that the knee recovered fully after two years.”
[3] ARD page 207.
This paragraph was repeated in the MAC of 31 January 2018.[4] As the AMS was assessing the injury of 20 January 2006, cross-examination was permitted, because there was no record in the evidence of any earlier right knee injury.
[4] ARD page 207.
In cross-examination, Mr Grimes identified the prior injuries that had been recorded by his medical practitioners, and it was put to Mr Elias that he had not disclosed that injury before. Mr Elias readily agreed, saying that he had undergone a right knee arthroscopy in either 1987 or 1988, but “it went away”. He said he returned to full work as a plumber and because it was 30 years ago, he did not think it was relevant, as I understood him.
Mr Elias was also asked about a statement he had made on 10 December 2017 in relation to his action for compensation for the 2006 injury.
In describing the condition of his right knee, Mr Elias said in his statement dated 10 December 2017:[5]
“59. My right knee tends to click. Standing, squatting, kneeling and negotiating stairs causes me pain. On occasion, my right and left knee give way. I still get intermittent swelling in my knees. I try to apply ice to them when I return home from work.”
[5] ALD respondent page 5.
Mr Grimes contrasted that statement with the statement made by Mr Elias on 2 July 2021 where he said:[6]
“10. As at the date of the subject injury, 26 June 2018, I was not experiencing notable right knee pain. I was told by my specialist, Dr Kirsh, that the right knee made a very good recovery following the surgery performed in May 2015. I did experience some intermittent clicking. I was able to manage any intermittent right knee symptoms…...”
[6] ARD page 12.
Mr Grimes also referred Mr Elias to a statement which was attributed to him in the MAC dated 31 January 2021. This stated “[7]
“Mr Elias experiences pain in the right knee on the medial side and behind the patella. This pain is present most of the time. He scores it as 7/10. His knee will swell and will lock every day. This will cause him to fall every few weeks as it may give way. The pain is worse if he squats.”
[7] ARD page 207.
Mr Elias said that his knee had been “clicking away” prior to the 2015 arthroscopy, which was why he underwent the procedure, but that there was “no problem” after it. He had “a little bit of symptoms, but no problem”. Mr Elias said that the knee was “becoming more significant now”.
Dr George Kirsh
Dr Kirsh has been treating Mr Elias since March 2006. He has treated many of the orthopaedic problems Mr Elias has encountered since that time, including the surgical procedures listed above. Regrettably, the ARD did not identify Dr Kirsh’s reports beyond an entry in the index that said “Dr George Kirsh” and an indication that there were 92 pages of the ARD listed under that heading. The following is an abridged chronology of Dr Kirsh’s involvement:
(a) 8 May 2009 - application for CT scan following the fall in hospital which injured the left knee;
(b) 15 May 2009 - left knee settling;
(c) 2 June 2009 - left knee playing up;
(d) 22 June 2009 - knee not settling, MRI scan ordered;
(e) 30 June 2009 - MRI shows torn meniscus. Left knee arthroscopy recommended;
(f) 7 July 2009 - left knee injury traumatic, not degenerative;
(g) 17 July 2009 - left knee arthroscopy showing complex tear of the lateral meniscus and grade II changes on the lateral femoral condyle;
(h) 2 November 2009 - left knee symptomatic (emphasis on the shoulder problems);
(i) 27 May 2015 – right knee settled down very well following the arthroscopy (no report lodged of the arthroscopy itself. It occurred with Dr Kirsh on 12 May 2015);
(j) 18 March 2016 - “still” has problems with the right knee giving way (emphasis on the left shoulder problem);
(k) 26 October 2017 - medial pain in right knee when squatting (shoulder problems and left knee problems also addressed);
(l) 11 July 2018 - subject injury of 26 June 2018 recorded consistently. Tenderness over right knee, previous right medial meniscectomy noted, further MRI ordered. (Dr Kirsh considering also the right shoulder left ankle left elbow and left wrist);
(m) 2 August 2018 - MRI demonstrates medial meniscal tear, right knee arthroscopy recommended;
(n) 5 September 2018 - right knee arthroscopy reveals a re-tear the posterior horn of the medial meniscus and grade II changes on the medial femoral condyle;
(o) 26 September 2018 - right knee settling well (elbow and shoulder injuries also considered);
(p) 5 March 2019 - knee still weak (emphasis on left elbow injury);
(q) 10 April 2019 - right knee gave way whilst simply walking and caused hamstring tear;
(r) 24 April 2019 - knee still tender on medial side (emphasis on left elbow treatment);
(s) 31 May 2019 - need the same (applicant to have surgery on his back. Shoulder remains the same);
(t) 2 September 2019 - complaint of knee pain but may be secondary to sciatica. No comment about the right knee;
(u) 4 November 2019 - right shoulder the same, wrist improved with PRP injections, applicant waiting for similar injections for his elbow. No comment about the knee;
(v) 2 November 2020 - request for approval for arthroscopy to the right knee, the subject of the present application;
(w) 3 November 2020 - explanation for arthroscopy recommendation. Four months post right distal clavicle resection, shoulder doing well. Right knee giving trouble again, giving way whilst walking and involving the ankle. MRI showed meniscal tear, re-tear of medial meniscus diagnosed. Arthroscopy recommended;
(x) 24 November 2020 - explanation to insurer that further arthroscopy necessary to avoid progressive development of osteoarthritis and symptomatic deterioration. No underlying pre-existing condition, save the earlier medial meniscal tear, which was now re-torn and “accepted complication of the initial tear.” Surgery proven to be beneficial and expectation of similar outcome, which, however could not be predicted, but hopeful;
(y) 2 March 2021 - right knee arthroscopy declined by insurer, and
(z) 15 February 2021 - “….whilst clinically the right knee resolved following his right knee arthroscopy he still had a defect in his knee because of this and he has re-torn his right knee when his knee gave way again. The giving way was because of problems in the knee associated with the original injury.” Dr Gothelf’s opinion considered
Dr Kirsh considered the question of the cause of the current condition of Mr Elias’ right knee condition in his report of 28 June 2021. He said:[8]
“I feel that the injury of 26 June 2018 is the main cause for Mr Elias’s right knee injury and current condition. Whilst he did tear his right medial meniscus in his injury on 20.1.2006, he had fully settled from his right knee arthroscopy in 2015. He had not complained of any knee problems since and whilst he did settle following his arthroscopy in 2018 the knee giving way now relates to his last injury which is that of 26 June 2018.”
[8] ARD page 48.
Dr Uthum Dias
Mr Elias retained Dr Uthum Dias, Occupational Physician, as his medico-legal expert.[9]
Dr Dias took a thorough and consistent history of Mr Elias’ complicated past history of injuries.[9] ARD page 36.
The diagnosis given for the right knee by Dr Dias was[10]:
“Mr Elias suffers from chronic right knee pain, stiffness and discomfort, secondary to medial meniscal tear and chondral damage. Mr Elias underwent a right knee arthroscopic partial medial meniscectomy and chondroplasty procedure in September 2018. Mr Elias’ right knee has remained unstable, and he has fallen significantly on a number of occasions as a result of his right knee giving away, most notably in January 2019 and in June 2020. As a result of his most recent fall, Mr Elias has been diagnosed with partial complex tear of the right knee medial meniscus (based on MRI scan performed in September 2020). He continues to suffer from ongoing right knee pain, stiffness and discomfort at the present time.”
[10] ARD page 37.
As to causation, Dr Dias said:[11]
“As a result of Mr Elias’ recurrent falls caused by Mr Elias’ compensable unstable right knee condition, Mr Elias has sustained a complex partial tear of his right knee medial meniscus. In my opinion arthroscopic intervention with a repeat partial medial meniscectomy is necessary and reasonable, given the risk of developing further osteoarthritic changes as a result of his torn medial meniscus. If Mr Elias does not undergo right knee arthroscopic surgical procedure, it is likely that his post traumatic degenerative changes in his right knee will progress significantly over the next a few years and result in a premature requirement for right total knee replacement procedure. Therefore, in my opinion Mr Elias’s requirements for right knee arthroscopic surgical procedure is reasonable and necessary. In my opinion the workplace injury has materially contributed to the need for this treatment.”
[11] ARD page 42.
Dr Christopher Reitz
With regard to the claim for treatment to the left wrist Dr Christopher Reitz, Orthopaedic Surgeon supplied two reports dated 7 August 2020 and 26 February 2021.[12] Dr Reitz advised in his first report that, relevantly, Mr Elias reported a relapse of his left wrist pain, and that PRP injections had previously given an “excellent improvement” of his similar problems the year before. Examination revealed limited motion of the left wrist with pain on extension and flexion as well as pronation and supination.
[12] ARD pages 144 and 142 respectively.
Dr Reitz’s second report related that Mr Elias’s wrist problems were related to a fall on
16 June (presumably 2019) when Mr Elias’s knee gave way, and that PRP injections were reasonable treatment.
Dr Michael Davies and Dr James Yu
The claim for facet joint block injections in the cervical spine was based on the report of
Mr Elias’s treating medical practitioner at the Waratah Private Hospital, Dr Michael Davies. In Dr Davies’ report of 9 December 2020 he noted that he had seen Mr Elias that day and that bone scans which had been taken demonstrated an uptake at the C3/4 facet joints. Dr Davies indicated that he was retiring, and that a colleague would continue treatment. Dr Davies had already recommended C3/4 facet blocks.
Dr James Yu took over Mr Elias’s treatment and reported on 18 February 2021. He noted that the neck pain, relevantly, was probably due to spondylotic changes at C3/4, with musculoligamentous issues, and proposed a bilateral C3/4 facet and transforaminal block for the neck pain, which had commenced with the subject accident. In his report to the insurer dated 8 August 2021, Dr Yu said, in explaining the necessity for this procedure:[13]
“Therefore, the proposed procedure, Bilateral C3C4 facet and transforaminal block, aims to identify and treat the pain generator at his cervical spine and reduce his neck nociceptive/pain input from spondylotic changes at C3C4.”
[13] ALD (applicant) page 15.
The AMS
On 22 January 2018 in matter 6816/17 an AMS, Dr Phil Truskett examined Mr Elias’s right knee.[14] Dr Truskett said:
[14] ARD page 209.
“On examining the lower limbs, there was no wasting of the muscles of the lower limbs. Both thighs measured 49cm in circumference, 10cm above the patella. Both calves measured 42cm at their widest point.
There was no knee deformity. There was no patellar crepitus. There was, however, tenderness on both patellae. There was a full range of knee movement.
Active ROM Right Active ROM Left Flexion 140° 140° Extension 0° 0° The cruciate ligaments were intact. The medial and lateral collateral ligaments were intact. McMurray’s test was negative. There were no knee effusions.”
Dr Gothelf
Dr Todd Gothelf, Orthopaedic Surgeon, was retained by the respondent as its medico-legal expert. I have already referred to Mr McManamey’s application to exclude this report in its entirety, as it referred to, and relied on, surveillance material which had not been served on the applicant. This survey of Dr Gothelf’s report deals only with those parts of the report that do not directly refer to the surveillance report. I bear in mind however that Dr Gothelf had seen the surveillance reports and that knowledge may have influenced his opinions.
Dr Gothelf’s report was 22 pages long and dealt with a number of issues that were not relevant to the application presently before the Commission. He was asked by the insurer to consider the subsequent medical treatment Mr Elias received for his various complaints.
Dr Gothelf noted that Mr Elias had undergone three PRP injections in the left wrist. He also noted that Mr Elias had undergone a previous partial meniscectomy, and that an MRI scan had shown the medial meniscal tear. He took a history of the subsequent arthroscopy on 5 September 2018, and the subsequent fall by Mr Elias around April 2019.
Dr Gothelf noted that there was a further fall on 16 June 2020 which aggravated left wrist arthritis. This incident, Dr Gothelf said, was “not related to the original right knee injury 26 June 2018”.[15] Dr Gothelf noted complaints of persistent right knee pain and that Mr Elias was unable to kneel or squat.
[15] Reply page 26.
In referring to the cervical spine, Dr Gothelf noted the findings of the MRI scan dated 8 August 2018 of degenerative change but no acute pathology. He noted Mr Elias has complaints of constant neck pain with headaches, dizziness and cracking. Dr Gothelf thought that the symptoms were inconsistent with the report of Dr McKechnie, who had reported in January 2020, and he seemed to have the overall management of Mr Elias’s problems.
Dr Gothelf noted the reports of the various medical practitioners who were treating Mr Elias’s many problems, and he noted the investigations and current complaints of symptoms. He carried out examinations of the various injuries, including those to the right knee, left wrist and the cervical spine.
Dr Gothelf’s opinion was that the left wrist injury was not related to the injury of 26 June 2018, which opinion I put to one side, as injury to the left wrist was admitted as I have indicated in the dispute notice.[16]
[16] Dr Gothelf’s comment at Reply page 37.
Dr Gothelf said that Mr Elias’s neck symptoms were now not related, as any ongoing symptoms were “not related to the subject injury…”.
Dr Gothelf was asked a number of questions by his retaining insurer. He said that the right knee condition had resolved, and that the ongoing symptoms were “related to pre-existing injury, degeneration of the right knee, for subsequent injury…”.
The injury to the left wrist Dr Gothelf also thought had resolved. Again, the ongoing symptoms “related to subsequent aggravation… from further injury… or pre-existing left wrist arthritis”.[17]
[17] Reply page 39.
Dr Gothelf was asked whether the proposed arthroscopy was reasonably necessary (relevantly) to which Dr Gothelf replied that the surgery for which the knee injury was treated resolved Mr Elias’s symptoms. The subsequent falls and knee giving way were not related to the original knee injury. Further, there was evidence of the pre-existing right knee condition with a previous partial meniscectomy. Dr Gothelf said:[18]
“I cannot comment on whether further right knee surgery would be beneficial as I have not seen reasons for the surgery to be done. Based on my own examination, I do not see a clear benefit for further surgery of the right knee as there was no evidence of mechanical symptoms of the right knee.”
[18] Reply page 40.
Dr Gothelf did not recommend any alternative treatment. Later on in his report, Dr Gothelf was asked again as to whether the arthroscopy was reasonably necessary, and he gave the same answers.
SUBMISSIONS
Mr Grimes
Mr Grimes submitted that it was “glaringly obvious” that Mr Elias should not be believed, in effect. He submitted that the inconsistencies he had identified in the evidence so severely compromised Mr Elias’ credibility that I should infer that they were motivated by a deliberate attempt to mislead.
Mr Grimes referred to the non-declared earlier injury and treatment of 30 years earlier, and he referred to Mr Elias’s two statements dated 10 December 2017 and 2 July 2021. He submitted that I would infer that in his first statement Mr Elias was seeking to maximise his injury, whilst in the second statement he sought to minimise the pre-existing condition.
Mr Grimes submitted that the inconsistencies so infected the assumptions made by the applicant’s experts that I would not accept their opinions. He alluded to the histories taken that Mr Elias was falling because his knee was giving way in 2019 and submitted that the present instability in the knee was shown by the applicant’s own evidence to have been present prior to the subject injury. Therefore, Mr Grimes submitted, I would not find that the need for the treatment results from the subject injury. Indeed, I would find that injury to the right knee had not been established because of the evidence regarding the pre-existing condition. (Mr McManamey interjected at this point in Mr Grimes submissions, pointing out that injury had been accepted).
Mr Grimes also submitted that he relied on Dr Gothelf’s report with regard to the need for treatment for the right knee.
As to the injury to the cervical spine, Mr Grimes referred to an expression in the medical evidence the suggested that the shoulder pain might be causing the neck pain. He relied on the opinion of Dr Gothelf that treatment for the neck was merely for underlying degenerative arthritis, and that any soft tissue strain to the neck would have resolved.
The denial of entitlement to compensation for medical or related treatment sought for the condition of the left elbow, Mr Grimes submitted, was based on the proposition that the left elbow condition was consequential and did not arise from the subject injury. If I were to find that the falls were the result of the prior injury in 2006, I would not find that the respondent was liable for treatment expenses arising out of the subject injury of 26 June 2018.
Mr McManamey
Mr McManamey opened his address by submitting that, as there was no suggestion that the left wrist was injured in the event of June 2018, the treatment now sought for the left wrist arose because of the subsequent falls. If liability was accepted for the left wrist condition because it was a consequence of those subsequent falls, Mr Grimes’ submission must lead to the conclusion that the fall was a contributing factor to the left wrist condition. He asked rhetorically how the respondent could accept liability for the consequential condition caused to the left wrist without also admitting liability for its cause, namely, the right knee giving way.
Mr Grimes interjected at that point in order to withdraw the submission he had made in relation to the left wrist, conceding the argument to Mr McManamey. Mr McManamey described the admission of liability for the left wrist as being a “logical problem” for the respondent. He submitted that the principle in Murphy v Allity Management Services Pty Ltd[19] applied.
[19] [2015] NSWWCCPD 49 (Murphy).
Mr McManamey addressed the submissions made by Mr Grimes, but there is no need to rehearse them at this point, as they are largely reproduced in my reasons.
Mr McManamey frankly conceded the inconsistency between Mr Elias’s two statements and submitted that Mr Elias was “putting his best foot forward” with respect to the earlier statement regarding a claim for the injuries sustained in 2006.
Discussion
The respondent appears to have misconceived what the issues were in this case.
The denial as argued at the hearing appeared to rely not only on Dr Gothelf’s opinions, but additionally on the applicant’s alleged lack of credibility. As I indicated during the hearing,
Dr Gothelf’s opinion was affected by the fact that he had also seen the surveillance footage, which had not been served, and was inadmissible. Although I have discussed Dr Gothelf’s evidence where he has not directly referred to that evidence, nonetheless, there is a danger that all his views have been coloured by his impression of what the surveillance showed. As a general proposition therefore, his evidence must be approached with caution, and is accordingly of less weight.
As to the alleged lack of credibility, the respondent made the most of the leave it was given to cross-examine, and it made some remarkable submissions as a result.
Cross examination was permitted to clear up the mystery of the prior award that was mentioned by the AMS. It was clearly of no relevance after Mr Elias explained that his right knee had been injured in an accident about 30 years ago, and indeed that Dr Kirsh had performed an arthroscopy at the time. However, he had fully recovered and worked as a plumber thereafter for decades. The respondent sought to cast that evidence in a sinister light, but I decline to do so. Even Dr Kirsh forgot about the event, as he did not mention it.
I accept Mr Elias as a credible witness, and I was impressed by his evidence. He was engaged with the questions and answered them directly and without hesitation once he understood the context in which they were being put. It can be seen that he has had a difficult time since 2006. He has suffered a labral tear in his right shoulder that was surgically repaired in 2006 and again in 2009. He tore the meniscus in his left knee that has required surgery in 2009, and his right knee developed symptoms as a consequence of his favouring it, so that on 12 May 2015 he came to a surgical repair of a right medial meniscal tear. Following the subject incident he came to a further arthroscopy on 4 September 2018, as he had re-torn his medial meniscus, and now he has retorn it again. He has also undergone back surgery in July 2019. He has suffered a left wrist and right hamstring injury also since the subject injury.
The inconsistencies relied on by the respondent do not relate to any of those facts. The highest inconsistency that the respondent could allege was that in his 2017 statement,
Mr Elias made some untrue statements that revealed that he was maximising his right knee condition in matter 6816/17. Assuming that to be so, as Mr McManamey conceded, I remain mystified as to how such a forensic success by the respondent has any relevance to the issues before me.
This matter concerns an application for a declaration pursuant to s 60(5). The issue is as to whether the three subject medical treatments were reasonably necessary.
The treatment for the right knee
In the case of the claim for a further arthroscopy to the right knee, the AMS, Dr Truskett, noted on examination on 22 January 2018 - five months before the subject injury – that the only abnormality in the right knee was a complaint of tenderness around the patella. I accept
Mr Elias’s evidence in cross-examination that he did experience “a little bit clicking,” but otherwise “no problem” or “a bit of a problem”. I also bear in mind his comment in his evidence that his knee was “going more significant now”. That assertion is also borne out by objective evidence in the form of the injuries to the left wrist and the torn hamstring following the right knee giving way since January 2019. It is relevant to note that Dr Kirsh took a history on 26 October 2017 that squatting was causing medial pain in Mr Elias’s right knee, so that the degree of inconsistency was not as great as that alleged by the respondent in any event.
Mr Elias has had an unfortunate history of tearing and re-tearing his medial meniscus for which he has been arthroscopically treated on 12 May 2015 and 5 September 2018. Each arthroscopy has relieved Mr Elias’s symptoms over a period of time, but regrettably the subject injury has caused both the need for the further arthroscopy and the deterioration of his knee. The last arthroscopy followed the subject injury and a further arthroscopy offers some hope that Mr Elias’s symptoms will again be ameliorated.
The investigations in the form of the 30 September 2020 MRI confirmed the presence of a complex partial tear of the medial meniscal body and posterior horn in the right knee. Dr Kirsh is of the view that an arthroscopy to repair the damage is a viable form of treatment, given the initial success of his past two arthroscopies. Dr Kirsh advised that a similar outcome was to be hoped. That opinion is sufficient to make the proposed arthroscopy reasonably necessary, as it satisfies the test in Diab v NRMA Ltd as to the potential effectiveness of the treatment.[20]
[20] [2014] NSWWCCPD 72 per Roche DP at [88-89].(Diab).
I reject Dr Gothelf’s opinion that the injury to the right knee had resolved. He accepted that there were ongoing symptoms but advised that they were the result of either pre-existing injury, subsequent injury, or degeneration. The reference to “subsequent injury” was to the onset of the knee giving way from January 2019. Dr Gothelf did not consider the effect of the pathology demonstrated by the MRI of 30 September 2020 that showed a re-tear of the medial meniscus in the context of the temporal connection between the arthroscopy of September 2018, and the first fall in January 2019. I accept the opinions of Dr Kirsh and
Dr Dias that the condition of Mr Elias’s right knee was as a result of the subject injury, and that the instability in the right knee was caused by the earlier arthroscopy of 4 September 2018.
I also accept Mr McManamey’s submission that the subject injury and subsequent arthroscopy materially contributed to the present need for surgery.[21]
The left wrist
[21] See Murphy per Roche DP at [58].
The denial of liability for the PRP injections was withdrawn by the respondent, but for the record I reject Dr Gothelf’s view that the left wrist condition was not related to the subject injury. His opinion was based on the wrong assumption that the falls that were caused by
Mr Elias’s right knee giving way were also not related. Dr Gothelf’s suggestion that the left wrist problems were caused by pre-existing arthritis do not grapple with the concept that the fall aggravated the underlying condition, which aggravation is continuing as illustrated by the application for further treatment. Conservative treatment had been given over the period since the injury, and the recommendation by Dr Yu for the PRP injections to treat the inflammation demonstrated by the bone scan was endorsed by Dr Dias.
The respondent pressed its denial of liability for the facet block injections to the cervical spine but faintly. Dr Gothelf again advised that the cervical spine symptoms were no longer related to the subject injury, as they had resolved.
The MRI scan of 17 October 2019 demonstrated pathology at C3/4 in the form of a posterior disc protrusion,[22] and a bone scan showed there was uptake at that level. Dr Dias confirmed that the injury was diagnosed as the aggravation of previously asymptomatic degenerative cervical spondylosis, and that Mr Elias has remained symptomatic since.
[22] ARD page 184.
Dr Gothelf agreed that Mr Elias had aggravated his underlying degenerative condition, but because an improvement had been noted by Dr McKechnie on 8 January 2020, that aggravation had ceased. Dr McKechnie noted in his report of 3 December 2020 that the applicant was continuing with medication and exercises and was “clinically unchanged” – the same expression he used in his report of 31 October 2019. Regrettably his report of
8 January 2020 was not lodged, but I infer that whatever the improvement might had been, it did not connote a complete cessation of symptomatology. Dr Dias also advised that the aggravation had not resolved, as Mr Elias had remained symptomatic.
The facet joint block injections themselves were not suggested to be an unreasonable form of treatment.
SUMMARY
Accordingly, I declare that the proposed treatment for the right knee, the left wrist and the cervical spine are reasonably necessary.
The respondent will pay for the costs of and associated with the proposed treatment.
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