Elliot v DuPont Memcor (Australia) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Elliot v DuPont Memcor (Australia) Pty Ltd [2023] NSWPIC 333
APPLICANT:	Glen Elliot
RESPONDENT:	DuPont Memcor (Australia) Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	10 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of proposed total knee replacement surgery; no issue applicant suffered injury by way of aggravation to underlying arthritic changes; only issue is whether the aggravation has made a material contribution to the accepted medical need for the proposed surgery; Held – the proposed left total knee replacement surgery is reasonably necessary as a result of the applicant’s injury; it has brought forward the need for the surgery; Federal Broom Co Pty Ltd v Semlitch and Murphy v Allity Management Services Pty Ltd applied; respondent to pay the costs of and incidental to the proposed surgery.
determinations made:	The findings and reasons are as follows: 1. The applicant suffered an injury to his left knee by way of ongoing aggravation to pre-existing osteoarthritis in the course of his employment with the respondent on 15 March 2022. 2. The left total knee replacement surgery proposed by Dr Shidiak is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the costs of and incidental to the proposed total left knee replacement surgery.

STATEMENT OF REASONS

BACKGROUND

In or about 1995, the applicant, Glen Elliott suffered an injury to his left knee when he fell from a horse while working as a track work jockey.
In or about 2003, the applicant commenced employment with DuPont Memcor Pty Ltd (the respondent). On 15 March 2022, the applicant suffered an accepted injury to his left knee in the course of his employment when he was demonstrating a work technique to a new employee and accidentally hit his left knee with a rubber mallet.
There is no issue the applicant suffered the relevant injury, or that it caused an aggravation to his underlying left knee osteoarthritis. However, the respondent contends any aggravation to that arthritis has passed, and the accepted medical need for a left total knee replacement as proposed by the applicant’s treating surgeon is brought about by the non-work related underlying condition.

ISSUE FOR DETERMINATION

The parties agree that the only issue in dispute is whether the accepted injury to the applicant’s left knee has made a material contribution to the need for the total knee replacement surgery.
The respondent concedes if there is a finding in favour of the applicant on the question of material contribution, then the proposed surgery is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

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.
The parties attended a hearing on 28 June 2023. At the hearing, the applicant was represented by Ms Goodman of counsel instructed by Mr Zheng. The respondent was represented by Mr Young of counsel instructed by Ms Bellemore.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed surgery is reasonably necessary as a result of the left knee injury

For the respondent, Mr Young noted the only issue in dispute is whether the accepted injury to the left knee has made a material contribution to the need for surgery. The respondent submitted the applicant has not discharged his onus of proof, and that the views of the respondent’s Independent Medical Examiner (IME), Dr Riley, should be preferred.
Mr Young appropriately conceded the applicant was open and honest in relation to his prior left knee injury which led to him having multiple surgeries. He noted the history taken by the applicant’s IME, Dr Lee, was correct in relation to the injury at issue. That history is:
“On 15 March 2022, he was demonstrating to a new employee how to work and accidentally hit his left knee with a rubber mallet. He continued working for about 10 minutes and could not cope. He told his boss and went to a medical centre. The x-ray and MRI showed broken osteophyte on the medial side. He had an arthroscopy which did not help. His specialist has now recommended knee replacement.”
In his report, Dr Lee acknowledged the applicant’s previous left knee injury and the multiple cruciate reconstructions undertaken since that time together with the osteoarthritis brought about as a consequence of the riding accident and its medical sequelae. He noted the applicant stopped riding horses following the 1995 injury but was able to find a job with the respondent in a water filtration plant, where he had been working for 20 years up until the date of injury.
Mr Young noted the applicant’s case was the injury at issue had caused an aggravation to the underlying arthritis, however, he criticised Dr Lee as failing to say what it was pathologically which had caused the relevant aggravation.
Mr Young took the Commission to the report of treating surgeon Dr Shidiak to the respondent’s insurer dated 20 July 2022. In that report, Dr Shidiak noted the applicant had severe arthritis of the left knee which requires total knee replacement, the fact of which is not in dispute.
Dr Shidiak also stated the applicant’s employment is a contributing factor to his arthritis. According to Dr Shidiak, the applicant:
“does report a number of injuries at work to the left knee but now suffers from significant degenerative changes from his manual labouring. Claimant has had a number of injuries as a jockey in the past including ACL surgery which have also contributed to his degenerative changes.”
Dr Shidiak noted the previous injuries suffered by the applicant have contributed to the degenerative changes as well as his duties as a manual labourer. He said it was difficult to predict in hindsight whether the applicant would have required the proposed surgery regardless of his work or previous injuries, but that there is now no question the applicant required a total knee replacement due to significant arthritis in his left knee which has progressed over time.
Mr Young submitted that of the factors listed as causative of the applicant’s arthritis, the current injury was not referred to by Dr Shidiak.
The difficulty with the respondent’s submissions in this regard is that the test for establishing the relevant causal link between an injury and the need for surgery is only that the injury made a material contribution.
The relevant question, which highlights the distinction between the “commonsense” approach to causation which is favoured in workers compensation cases and the mere “but for” approach is: did the injury bring to light a need for treatment that was going to be necessary anyway or did the injury not only bring to light a need for treatment that was going to be needed anyway, but that treatment is required now and the option to wait and/or try other treatments has been removed?
In my view, the facts of this matter clearly fall within the second category. The need for treatment of any kind is brought about by symptomology, not by underlying pathology. For example, an injured worker may have suffered disc pathology brought about by degenerative changes in their lumbar spine, however, a work-related incident may render that underlying pathology either symptomatic or worse than it was before the injurious workplace event, necessitating treatment which otherwise would not have been necessary. In such a case, the work-related aggravation has made a material contribution to the need for surgery in worsening the symptomatology which requires the treatment sought.
In this matter, it is significant in my view that the applicant had been able to work for many years with the respondent in physical demanding labour, notwithstanding his underlying arthritic condition.
For the respondent, IME Dr Riley also took an accurate history of the incident at issue. When describing the applicant’s current symptoms in his first report dated 22 August 2022, Dr Riley said:
“Glen describes pain particularly about the medial aspect of the left knee and to a lesser extent, laterally. He states that the pain is moderate to severe in severity and is disabling and interferes with his walking and activities. Glen is taking regular Mersyndol and occasional Endone to control his pain symptoms. Glen stated that he has limped for many years and that previously his symptoms were ‘not too severe’ but certainly have been exacerbated following the recent work injury.”
Dr Riley diagnosed the applicant as suffering from advanced tricompartmental osteoarthritis of his left knee, which has occurred progressively over the past 27 years. Dr Riley stated,
“the arthritis had progressed over that time, consequent to the race fall injury and subsequent surgeries thereafter. Dr Riley stated that the injury at issue involved a microtrabecular fracture of osteophytes in the medial compartment, however, when
Dr Shidiak carried out an arthroscopic surgery on 27 May 2022, he was unable to find any definite loose body and only found the degenerative changes.”
In summary, Dr Riley found that the work injury at issue would have caused a temporary aggravation of symptoms, and if the applicant had developed a symptomatic loose body, then the treatment for that had already occurred in the form of the arthroscopic surgery. Dr Riley agreed with treating surgeon Dr Shidiak that a left total knee replacement is reasonably necessary, however, he opined such surgery was necessary to address the pre-existing osteoarthritis and not the effects of the recent work-related injury on 15 March 2022.
Dr Riley maintained a consistent course of opinion through the provision of three reports, the last of which was on 26 September 2022.
In his second report dated 5 September 2022, Dr Riley ventured that the temporary aggravation of the applicant’s knee pathology would have settled over a three-month timeframe. However, he provides no reason as to why that timeframe would have been applicable in this matter.
In his third report dated 26 September 2022, Dr Riley maintained the view the work injury has not materially contributed to the need for left total knee replacement because of the severe pre-existing osteoarthritis and also the nature of the work injury itself.
In that report, Dr Riley stated the natural history of a knee joint with the type of injury suffered by the applicant following the fall in 1995 and subsequent surgeries is of the progressive development of osteoarthritis. That development is not controversial.
Dr Riley stated that prior to the work injury at issue, the applicant had been informed by his orthopaedic surgeon he would require a left total knee replacement and the only consideration was the timing of that surgery. Dr Riley then says it is very clear the advanced pre-existing osteoarthritis and the symptoms associated with it were all consequent to the injury sustained in 1995 and the management thereafter.
Dr Riley stated the mechanism of workplace injury in 2022 and the MRI findings and subsequent arthroscopic findings were consistent with an aggravation of the underlying arthritis in the knee, but there was no evidence of any significant contribution to that underlying arthritis, and therefore the injury in March 2022 cannot be considered to have materially contributed to the need for subsequent left total knee replacement.
With respect to Dr Riley, that is not quite the test which needs to be applied. As noted, it is symptomology which necessitates treatment, not underlying pathology.
There is a long line of authority dealing with the requirements for establishing injury by way of aggravation. The High Court considered the issue of aggravation and exacerbation of disease processes in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 (Semlitch). In that matter, Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
Windeyer J said in the same matter, “[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient” (at 639) and in relation to whether there was an aggravation, his Honour said “… the answer depends upon whether for the sufferer the consequences of his affliction have become more serious” (at 637).
Burke CCJ, applied Semlitch in the matter of Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (Cant) and said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (at [17])
In Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (Mecha) the Court of Appeal said the words “injury consists in the aggravation ...of a disease” in s 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (Sheller JA at 616).
It can therefore be said that the proper test is whether the aggravation impacted the individual concerned, not whether there are objective signs of a worsening of underlying pathology. It is not necessary for the particular underlying disease to be made worse: see Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79 (Raymond) applying Semlitch and Cant.
In Raymond, Roche ADP (as he then was) was satisfied that, on the whole of the evidence, it was open to the Arbitrator to conclude that the worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious while employed (at [45-47]).
In this matter, it is necessary to determine whether the effects of any aggravation suffered by the applicant are ongoing. In my view, the evidence establishes they are.
The applicant provides a statement, in which he sets out the following evidence of his circumstances post-injury:
“12.   I obtained treatment in the form of medications, rest, local treatment and physiotherapy however none of them worked.
13.    I was referred by my GP to see a specialist Dr Shidiak.
14.    I had an arthroscopy in May 2022 which the insurer paid for but it did not help.
15.    Dr Shidiak put in a surgery request for total knee replacement for my left knee on 15 July 2022. The insurer has since denied this treatment.
…
17.    Since my injury, I have felt increasing pain and stiffness in my left knee, this worsens when I try to engage in any physical activity involving my left knee.
18.    I would often hear clicking in my knee and have ongoing pain.
19.    The pain in my left knee has limited me in my daily activities and I have no lifting capacity at all. The injury also makes it impossible for me to work. The arthroscopy has also not alleviated any of my symptoms.
20.    Prior to my 2022 injury, I was able to bushwalk, hike and ride a bicycle and I could no longer do any of those activities.
21.    I am currently relying on a walking stick and occasionally relying on crutches.
22.    I have not worked since the date of my workplace injury on 15 March 2022.”
As Ms Goodman noted, there is no evidence to contradict the applicant’s evidence that he has suffered increased pain, stiffness and restriction of movement since the workplace injury at issue.
The applicant also relied on the records of his treating general practitioner (GP), Dr Javed. Ms Goodman submitted, and I accept, that the clinical records of Dr Javed, who had treated the applicant for some time before the injury at issue, divulged no attendances upon the GP for left knee symptoms before the work-related injury.
Likewise, the applicant’s physiotherapist, Mr Wood, who provides a report at p 105 of the Application noted the applicant had only attended physiotherapy since the injury at issue.
Ms Goodman submitted, and I accept, that it is of little moment if the treating surgeon, Dr Shidiak, also implicates the nature and conditions of the applicant’s employment as a cause of the requirement for surgery. What is in issue is whether there is any material contribution by the incident in question on 15 March 2022.
Ms Goodman submitted there is no issue it is the arthritis which causes a need for the surgery, however, it is the worsening of that arthritis after the injury at issue which has necessitated the surgery taking place at the present time. I accept that submission.
As Ms Goodman noted, the authorities are clear that there can be many causes of the requirement for surgery, but the relevant test is only whether the injury at issue is a material contributing factor to such need. In so submitting, Ms Goodman relied on the decision of Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy). In that matter, the Deputy President held at [58]:
“Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd vSchokman [2014] NSWWCCPD 18). That is, she has to establish that the injury materially contributed to a need for surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
In his report to the applicant’s GP dated 21 April 2022, Dr Shidiak noted the worsening symptoms reported by the applicant of clicking and catching in his knee, and the presence of loose bodies in his joint space. In a report to the respondent’s insurer of 5 May 2022,
Dr Shidiak reported “acute exacerbation in recent times has been from a number of fractured osteophytes, which have created loose bodies in his knee”. That report is consistent with the findings of the MRI and is suggestive of an acute aggravation as a result of the workplace injury in issue. In that report, Dr Shidiak recommended the arthroscopy, but said it would most likely not alleviate the applicant’s pain and he would require a total knee replacement in the future.
On balance, I accept the views of Dr Lee, IME for the applicant who noted the pre-existing degenerative changes in the applicant’s left knee, but indicated the incident at issue at work aggravated the osteoarthritis so much that the applicant could not return to work and also brought forward the need for a total knee replacement.
On balance. I reject the views of Dr Riley. Although Dr Riley’s reasoning process is quite detailed, it does not sit with one simple but important fact of this matter, namely the applicant’s aggravation did not settle after three months, and on the accepted evidence has not settled at all.
If Dr Riley’s view was correct, and the effects of any aggravation were to have passed within three months, one would have expected some settling of the applicant’s condition and some benefit to have been derived from the arthroscopy. Neither of those things have happened, and on balance, I am not persuaded by Dr Riley’s opinion and prefer that of Dr Lee, supported as it is by the views of the treating surgeon, Dr Shidiak and also the applicant’s GP, Dr Javed.

On balance, I have no issue finding the incident at work on 15 March 2022 aggravated the applicant’s underlying osteoarthritis in his left knee, an aggravation which continues, and has therefore made a material contribution to the need for a total knee replacement.
In light of these findings and the respondent’s concession the proposed surgery is otherwise a medical necessity, it follows the proposed surgery is reasonably necessary as a result of the workplace injury, and the respondent will be ordered to pay the costs of and incidental to the left total knee replacement.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 333

10 July 2023