Emanuel v Noni B Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Emanuel v Noni B Limited [2023] NSWPIC 575
APPLICANT:	Vanessa Ann Emanuel
RESPONDENT:	Noni B Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	31 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation pursuant to section 66 as a result of undisputed injury to the right lower extremity (knee) and disputed consequential condition in the lumbar spine, and urological condition; the respondent relied on discrepancies between the applicant’s evidence and histories supplied to treating and qualified medical examiners to submit that reports in support of the claim could not be relied upon; detailed examination of medical evidence to find that any such discrepancies did not detract from the medical evidence in support of the applicant’s claim; finding that that two conditions claimed by the applicant were consequent upon the undisputed right knee injury; Held – matter referred to Medical Assessor for assessment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered from a condition in the lumbar spine consequent upon injury to the right knee on 15 December 2017. 2. The applicant suffered from a urological condition causing incontinence consequent upon injury to the right knee on 15 December 2017. 3. The matter is remitted to the President for referral to Medical Assessors for assessment of permanent impairment as a result of: (a) injury to the right lower extremity (knee) on 15 December 2017; (b) a condition in the lumbar spine consequent upon injury to the right knee on 15 December 2017; (c) a urological condition causing incontinence consequent upon injury to the right knee on 15 December 2017, and (d) scarring of the right knee. 4. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Certificate of Determination and Statement of reasons. 5. The Medical Assessor who assesses injury to the right lower extremity (knee) and condition in the lumbar spine is to act as the lead assessor.

STATEMENT OF REASONS

BACKGROUND

Vanessa Ann Emanuel (the applicant/Ms Emanuel) seeks compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 as a result of injury to her right lower extremity (knee) on 15 December 2017 arising out of or in the course of her employment as a store manager with Noni B Limited (the respondent).
The respondent does not dispute liability for injury to the right knee scarring resulting from surgery thereon. The applicant claims that she also suffered:
(a) a urological condition causing incontinence, and
(b) a condition in the lumbar spine,
consequent upon the right knee injury. The respondent disputes liability for these conditions.
The applicant commenced employment with the respondent in March 2017 at the Lake Haven, NSW, store and transferred as store manager to the Green Hills, NSW, store in October /November 2017. On 15 December 2017 she suffered injury to her right knee when she fell from a ladder when retrieving stock from a shelf approximately 2m above the floor. As she landed on the floor Ms Emanuel took her entire body weight on the right hand side of her right knee. The store was busy; she continued to complete her work day in pain, and attended Gosford Hospital after finishing work at about 5.30 pm. The knee was X-rayed and the applicant was allowed home.
The applicant continued to work her usual roster for the respondent. She says that she was in pain and taking analgesic medication in accordance with advice received form Gosford Hospital during a second visit during the time she was working. She went on a planned family overseas holiday in July 2018.
The applicant consulted her general practitioner before leaving for the holiday, who requested approval from the respondent’s insurer (EML) for an MRI scan to be carried out. The applicant underwent this scan on her return from holiday. Thereafter Ms Emanuel was referred for physiotherapy treatment and to Dr Bateman, orthopaedic surgeon. Dr Bateman performed an arthroscopy on the right knee on 31 August 2018 which did not provide relief from the symptoms in the knee. A second opinion was sought from Dr Parker, orthopaedic surgeon, on 4 February 2019. Prior to that, on 21 January 2019, the applicant says that she “pulled” her back when she bent down to pick up a “whipper snipper” in the backyard of her home to move it out of the way. She subsequently attended the Emergency Department of Wyong Hospital on 23 January 2019, and was discharged the same day.
An MRI scan of the back was carried out on 21 February 2019. The applicant’s general practitioner, Dr Scarman, referred Ms Emanuel to Dr Kadavil, specialist pain management physician, on 5 March 2019 for treatment of ongoing right knee symptoms. Dr Bateman referred her to Dr Coughlan, neurosurgeon, on 10 April 2019 for treatment on significant ongoing left sided sciatica, and L4 pain. Dr Bateman also referred Ms Emanuel to see
Dr Caldwell, orthopaedic surgeon, for a second opinion on the right knee on 28 May 2019.
Dr Kadavil carried out a genicular nerve radiofrequency neurotomy on the applicant’s right knee on 20 March 2019. On 6 May 2019 Ms Emanuel advised Dr Kadavil that she did not feel any changes in the knee after the procedure.
Dr Caldwell operated on the right knee on four occasions, namely:
(a)    on 14 August 2019, a lateral unicompartment right knee replacement;
(b)    on 11 March 2020, revision of the lateral unicompartment right knee replacement;
(c)    on 2 September 2020, an isolated iliotibial band release, and
(d)    on 7 December 2020, a revision total right knee replacement, converting the unicompartment replacement to a total knee replacement.
On 23 September 2021 Dr Caldwell referred Ms Emanuel to Dr Schwarzer, consultant in pain medicine.
Dr Schwarzer treated the applicant for right knee pain between 1 December 2021 and
15 December 2021.
Dr Coughlan referred the applicant to see Dr Manning, certified urogynaecologist, on
13 July 2021 for treatment of urinary urgency and urge incontinence. Dr Manning diagnosed defrusor overactivity and administered Botox treatment which did not provide relief. She requested approval from the respondent’s insurer for a trial of a micro stimulator which has not been carried out.
The applicant was independently medically examined by the following doctors:
(a)    Dr Powell, orthopaedic surgeon, report dated 21 October 2020;[1]
(b)    Dr Haig, orthopaedic surgeon, reports dated 20 October 2022 and
28 March 2023;[2]
(c)    Dr Isaacs, orthopaedic surgeon, report dated 6 December 2022;[3]
(d)    Dr Korbell, urological surgeon, reports dated 18 December 2022 (x2) and
25 January 2023;[4]
(e)    Dr Mellick, neurologist, report dated 27 March 2023,[5] and
(f)    Associate Professor Farnsworth (Dr Farnsworth), urologist, report dated
[1] Application to Resolve a Dispute (ARD) p 147, noting that the page references to the attachments to the ARD and Reply in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
[2] ARD pp 156 and 162.
[3] ARD p 34.
[4] ARD pp 42 and 46.
[5] ARD p 169.
[6] Reply p 37.
12 April 2023.[6]

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Did the applicant suffer from a condition in the lumbar spine consequent upon injury to the right knee on 15 December 2017?
(b) Did the applicant suffer from a urological condition causing incontinence consequent upon injury to the right knee on 15 December 2017?

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 an in-person conciliation/arbitration hearing on 18 October 2023.
Mr S Hickey of counsel appeared for the applicant briefed by Mr Watson. The applicant attended. Mr A Parker of counsel appeared for the respondent briefed by Mr Gore-Lenskyj. A representative of the respondent’s insurer, EML, attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. In summary, they are as follows.

Applicant

The applicant refers to the evidence in her statement dated 12 July 2019,[7] and in particular from [74] – [99] thereof outlining in detail the treatment she has undergone since her fall off the ladder on 15 December 2017. She also relies on her statement dated 12 July 2023,[8] and emphasises the ongoing problems of incontinence and back pain from which she suffers. That statement also describes in more detail to what occurred when she bent down to remove the whipper snipper and experienced back pain in January 2019, and the fact that she was limping due to knee pain. She says that her back pained worsened following that incident.
[7] ARD p 5.
[8] ARD p 19.
The applicant refers to the record of her attendance on her general practitioner,
[9] ARD pp 221 - 222.
Dr Belthikiotis, on 15 February 2019 following that incident and the recording of ongoing knee pain, a limp when walking, and pain in the back due to limping from knee pain.[9]
The applicant refers to the Certificate of Capacity dated 21 June 2018 issued by Dr Bain containing a reference to:
“soft tissue injury R knee; 2ary sciatica
fall from 3^rd rung latter landed on lateral R Knee”,[10]
noting that this recording is seven months after injury on 15 December 2017, and seven months before the whipper snipper incident in January 2018. It predates the arthroscopy on
[10] ARD p 327
31 August 2018.
The applicant refers in detail to the treatment afforded to her by the treating practitioners, summarised above and referred to in more detail hereunder. A chronology of this treatment is included in the ARD.[11]
[11] ARD p 63.
The applicant relies on the independent medical opinions expressed in the reports of
Dr Issacs, Dr Korbell, Dr Mellick, and Dr Farnsworth.
In summary the applicant submits that because of:
(a)    the significant knee injury she suffered;
(b)    the alteration in her gait because of that injury that caused symptoms in her back;
(c)    the early complaint to Dr Bain of knee injury, secondary sciatica and back pain that predated the whipper snipper incident, and in particular,
(d)    the opinions of the treating neurosurgeon Dr Coughlan and treating urogynaecologist Dr Manning,
she has suffered conditions in her bladder in the form of a urological condition causing incontinence, and in her lumbar spine, consequent upon the undisputed injury to the right knee on 15 December 2017.
The applicant relies on what the Court of Appeal said in Kooragang Cement Pty Ltd v Bates[12] in respect of the commonsense appraisal of evidence when determining causation of injury or conditions consequent thereon. The applicant submits that there is no requirement for absolute scientific evidence when determining injury/condition if the tribunal considering the matter is, after consideration of the lay and expert medical evidence, satisfied of an unbroken chain of causation between injury and condition(s) consequent thereon.
[12] (1994) 35 NSWLR 452.

Respondent

The respondent notes [106] – [107] of the applicant’s statement dated 12 July 2019 wherein Ms Emanuel says that, prior to the subject accident she had never experienced any similar injury, nor had any previous workers compensation claims.
The respondent refers to reports of:
(a)    Dr Isaacs dated 6 December 2022, in which the history of previous injuries recorded is that the applicant has not suffered from any injury to the right knee or the lower back prior to the incident of 15 December 2017;[13]
[13] ARD p 34.
(b)    Dr Bateman dated 19 February 2019, in which the doctor records that the way that the applicant is walking and overloading the lumbar spine is directly related to the right knee, and would therefore be related to the same compensable claim;[14]
[14] ARD p 98.
(c)    Dr Coughlan dated 18 May 2019, in which there is reference to leg length issues, not work related;[15]
(d)    Dr Coughlan dated 19 August 2020, in which there is reference to long standing valgus and pelvic tilt, which is submitted to have nothing to do with the knee surgery;[16]
(e)    Dr Coughlan dated 31 July 2021, in which there is repeated reference to leg length discrepancy;[17]
(f)    Dr Manning dated 13 July 2021, at the conclusion of which there is reference to medical co-morbidities that can impact on management, none of which apply to the applicant;[18]
(g)    Dr Manning dated 13 July 2021 (second report), in which there is reference to “anxiety/depression”, which contradicts the precious report of the same date;[19]
(h)    Dr Kueh dated 28 August 2020 (“EOS Spine and Lower Limbs”), in which
Dr Coughlan seeks assessment of leg length discrepancy, left knee valgus and pelvic tilt, corroborating according to the respondent, the existence of these pre-existing conditions;[20]
(i)    Dr Haig dated 20 October 2022, quoting the history of the applicant relating that “…she woke one morning in January 2019 with pain in the low back which travelled into the left buttock and posterior thigh though not beyond the knee”;[21]
(j)    Dr Haig dated 28 March 2023, and his belief expressed that the low back condition from which the applicant suffers is not a consequential condition,[22] and
(k)    Dr Powell dated 21 October 2020, containing the opinion that on the basis of the available information the current diagnosis remains related to the previously accepted consequential injury involving the lower back.[23]
[15] ARD p 102
[16] ARD p 108.
[17] ARD p 111.
[18] ARD p 118.
[19] ARD p 120.
[20] ARD p 129.
[21] ARD pp 156 and 158.
[22] ARD pp 162 and 165.
[23] ARD pp 147 and 153.
The respondent refers to the following clinical notes:
(a)    Dr Sturmberg dated 23 May 2013, containing reference to a fall at netball, limping, and swollen left knee, contradicting according to the respondent the history of no previous injury and altered gait as a result of the right knee injury;[24]
(b)    Dr Baines dated 3 and 24 June 2013, referring to the left knee injury of “18 May” as a result of a fall at netball;[25]
(c)    Dr Barkey dated 12 August 2014, containing reference to left loin pain and urinary frequency;[26]
(d)    Dr Scarman dated 15 August 2014, containing reference to low back pain, which according to the respondent contradicts the history recorded by Dr Isaacs, who also recorded no prior urinary tract issues;[27]
(e)    Dr Scarman dated 20 August 2014, who recorded sudden onset of left sided lower back pain “…OK an night when lying down”;[28]
(f)    Dr Scarman dated 2 August 2017, who recorded applicant “quite anxious”;[29]
(g)    Dr Scarman dated 20 February 2018, who recorded sore right knee;[30]
(h)    Dr Scarman dated 18 May 2018, who recorded history of the applicant getting her right foot stuck in the running board of an escalator,[31] and
(i)    Dr Coughlan in a report dated 1 September 2021, who recorded compensatory scoliosis, which contradicts the opinions of other doctors, and is not relevant.[32]
[24] ARD p 203.
[25] ARD p 204.
[26] ARD p 205.
[27] ARD p 206.
[28] ARD p 207.
[29] ARD p 213.
[30] ARD p 214.
[31] ARD p 216.
[32] ARD p 279.
The respondent submits that, based on the foregoing references to prior injuries and conditions in the reports and clinical notes, the opinions of the doctors on whom the applicant relies to support her case should be treated with caution, as they do not have the full correct history of Ms Emanuel. The diagnosis of those doctors cannot therefore be relied upon.

Applicant in response

The applicant responds to the respondent’s reliance on the abovementioned references to reports and entries in clinical notes with the submission that the reports and entries reveal that the complaints were recorded as being of a minor or short term nature, and of recovery from the complaints. The applicant submits that:
(a)    the fall at netball recorded on 23 May 2013 was recorded as getting slowly better;
(b)    on 23 August 2012 the applicant denied to Dr Belthikiotis urinary symptoms;[33]
(c)    on 3 June 2013 the left knee injury from netball recorded by Dr Baines was a “bone bruise” only;
(d)    Dr Baines recorded on 24 June 2013 in respect of that last mentioned injury that the applicant was “Back to full duties”;
(e)    the entry by Dr Scarman of 15 August 2014 was of left sided low back pain;
(f)    the entry by Dr Scarman of 20 August 2014 raised an issue of an ovarian cyst, with no reference to urinary symptoms;
(g)    an entry by Dr Scarman of 26 September 2014 in respect of a presenting problem of depression revealed that it was a short term issue;[34]
(h)    the entry by Dr Scarman of 2 August 2017 in respect of anxiety related to personal problems in respect of the applicant’s partner, and
(i)    the entry of 18 May 2018 relating to the applicant getting her foot stuck in an escalator revealed that it was a soft tissue injury, and that there were no further consultations recorded in respect thereof.
[33] ARD pp 202 and 203.
[34] ARD pp 208 and 209.
The applicant submits that there is no issue of the credibility of the applicant, and that the history of the prior events recorded in the reports and clinical notes were short term issues only, and do not detract from the medical opinions on which she relies in support of her case.
The applicant concedes that there is no doubt that she was suffering from a pre-existing degenerative condition in her right knee, but that is a matter to be taken into account by a Medical Assessor pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 when assessing permanent impairment.
The applicant submits that Dr Coughlan reports on the worsening onset of back pain as a consequence of treatment of the right knee.
In respect of the applicant’s altered gait pattern, while the applicant concedes that she suffered from pre-existing leg length discrepancy, pelvic tilt, and knee valgus, these are conditions to be regarded in terms of the “egg shell skull” principle when considering a worker with pre-existing conditions who has suffered a work injury. In this regard the applicant refers to the reports of Dr Coughlan dated 27 November 2019,[35] and Dr Bateman dated 19 February 2019.[36]
[35] ARD p 105.
[36] ARD p 98.
The applicant notes that the respondent’s insurer previously accepted that she had problems with her back and urinary tract in the sense that it paid for treatment of these conditions. Whilst she concedes that such acceptance is not determinative of the issue of consequential conditions, it is a matter that can be taken into consideration.
The applicant finally submits that in any referral to a Medical Assessor, scarring as a result of surgery to the right knee must be referred for assessment.

FINDINGS AND REASONS

The applicant’s medical evidence

The applicant was experiencing left sided lower back pain in 2014 as evidenced by the entries in the clinical notes of Dr Barkey and Dr Scarman, referred to at [28] above, over the period from 12 August 2014 to 20 August 2014. Dr Barkey also notes urinary frequency in her entry of 12 August 2014, which seems to have cleared up by 20 August 2014 when
Dr Scarman notes no urinary symptoms.

The back problems were investigated by Dr Scarman, who arranged a CT of the lumbar spine on 15 August 2014 (first recorded entry of that date), and reviewed an ultrasound and X-ray on the same date (second recorded entry of that date). On 20 August 2014
Dr Scarman recorded:
“Ultrasound pelvis – left sided lower back pain – no L-spine pathology on CT but ? left ovarian cyst”
Tramadol Sandoz SR 100 mg twice daily was prescribed.
On the same day Dr Scarman discussed at length the findings of the “L-spine CT”, describing it as minor pathology only, probably not enough to explain the applicant’s pain. No evidence of renal calculi was found but an ovarian cyst had not apparently been ruled out (“??? Ovarian cyst”).
The following visits with Dr Scarman to 26 September 2014, and thereafter, do not contain reference to the low back pain earlier complained of. On 26 September 2014 there is reference to depression, which as submitted by the applicant, appears to have been a short term issue at that stage.
The applicant consulted with Dr Scarman on 20 February 2018 when soreness in the right knee is recorded over the previous few weeks, going up and down ladders.[37]
[37] ARD p 214.
The applicant consulted with Dr Belthikiotis on 30 July 2018 with a history of ongoing pain, bucket handle tear noted, that the knee locks and may occasionally give way, that an operation may be required, and a letter to Dr Bateman was planned.[38]
[38] ARD p 217.
The applicant also saw Dr Baines on 30 July 2018 who issued a WorkCover Certificate of that date containing the following details of injury and injury mechanism:
“soft tissue injury R knee; 2ary sciatica
Fall from 3^rd rung ladder landed on lateral R knee”[39]
[39] ARD p 327.
Dr Bateman treated the applicant for the right knee injury of 15 December 2017. Ms Emanuel saw him initially on 6 August 2018 according to her statement dated 12 July 2019. Dr Bateman in his report dated 20 December 2018 to Dr Parker, to whom Ms Emanuel was referred for a second opinion, says that the initial consultation was on 30 August 2018.[40] In any event Dr Bateman carried out an arthroscopy on the right knee on 31 August 2018.
[40] ARD p 96.
On 21 January 2019 Ms Emanuel was involved in the “whipper snipper” incident referred to in [5] above. It is described in detail at [8] – [13] in her statement dated 12 July 2023. The applicant refers to her worsened back pain following the incident, and her reporting thereof to Dr Belthikiotis on 15 February 2019.[41] On 15 March 2019 Dr Belthikiotis noted that he was awaiting review by Dr Coughlan re probable L4 impingement on the left side.[42]
[41] See ARD pp 221.
[42] ARD p 222.
Dr Parker saw the applicant on 4 February 2019 and reported to Dr Bateman on that day.[43] His report deals with the right knee injury and the question of further surgery thereon, but he does comment that Ms Emanuel “…walks with an antalgic gait and does not fully extend her knee”.
[43] ARD p 116.
On 19 February 2019 Dr Bateman reviewed the applicant and reported to Dr Belthikiotis, referring to Dr Parker’s findings, and commenting on the right knee pain. Dr Bateman notes that a referral was to be organised to Dr Kadavil for pain management. Dr Bateman does say:
“Unfortunately, due to the way she is walking and overloading the lumbar spine she has had an acute lumbar disc problem on the contralateral side resulting in severe sciatica. I believe this is directly related to her right knee and therefore she would be under the same compensable claim. As it is not settling I would like her to see Dr Marc Coughlan for an opinion.”
Dr Kadavil saw the applicant on 5 March 2019 and reported to EML and Dr Scarman on that day.[44] Dr Kadavil addressed the right knee pain, and included in the “Pain History” in the report to Dr Scarman:
“Over this time, because of postural changes due to right knee pain, Vanessa has developed pain in her lower back and also has suffered from sciatic-like pain in her left lower limb. She feels that the pain is present all day every day but her right knee pain is the most painful at the moment.”
[44] ARD pp 112 and 113.
In the report to EML Dr Kadavil referred to the applicant’s low back pain, that she had an MRI scan done, and that she was to see Dr Marc Coughlan for further advice. Dr Kadavil arranged a right knee genicular radiofrequency neurotomy of five nerves, and on 6 May 2019 reported thereon to Dr Scarman.[45]
[45] ARD p 115.
Dr Coughlan first saw the applicant on 10 April 2019 and provided a report to Dr Bateman.[46] He noted that Ms Emanuel had had very significant ongoing sciatica on the left side and had a left L4/5 intra-foraminal disc causing L4 pain. The symptoms had settled somewhat. He arranged a CT scan which he compared to an MRI and found a small residual disc herniation which seemed to be resolving. A smaller left L5/S1 foraminal bulge just abutting the L5 nerve root was noted, not causing any frank compression. Conservative treatment was recommended.
[46] ARD p 101.
On 18 May 2019 Dr Coughlan reported to Dr Scarman that the applicant did not need back surgery, and that he would request from the insurer authorisation for an L4/5 and L5/S1 facet block in theatre.[47] This was carried out on 26 July 2019 with good result, but persisting pain at the L4/5 facet on the left-hand side was noted.
[47] ARD p 102.
On 27 November 2019 Dr Coughlan reported to Dr Scarman that the applicant had received good relief from the medial branch blocks. He said:
“Her bone scan points towards very mild joint inflammation and certainly one can see significant scoliosis which I think is worsened by her pelvic tilt and potential issued with her knee and her gait and the impact this is having on her back.”[48]
[48] ARD p 105.
Dr Coughlan continued to treat the applicant. On 19 August 2020 the doctor reported to
Dr Scarman that the applicant did have long-standing valgus in both legs and significant pelvic tilt, and that:
“In summary I think the main pain generator is a left L5/S I facet joint and unfortunately is properly worsened by her knee issue with eccentric loading of that joint. I would value his opinion of Dr Caldwell as to whether anything can be done to improve her gait and her knee pain obviously.”
On 20 May 2021 Dr Coughlan reported to Dr Bateman that the applicant had recently had her knee surgery and was recovering from this, but was really troubled by her back especially the worsening incontinence.[49]
[49] ARD p 109.
On 2 June 2021 Dr Coughlan reported to Dr Bateman that the applicant had significant issues with her bladder in terms of bladder irritability and that up to two to three times a day Ms Emanuel had bladder incontinence. He also noted that she had significant pelvic tilt which was impacting on her L5/S1, and wanted an opinion on bladder dysfunction prior to considering any surgical intervention.[50] On 31 July 2021 Dr Coughlan reported to
[50] ARD p 110.
[51] ARD p 111.
Dr Bateman that the applicant had marked leg length disparity with significant pelvic tilt and significant rotation of her pelvis as a consequence of this.[51]
On 13 July 2021 the applicant saw Dr Manning, the urogynaecologist, who reported to
Dr Coughlan on that day.[52] Dr Manning recorded a history of sudden onset of urinary urgency and urge incontinence after knee surgery in 2018 when back pain occurred. She concluded that the applicant displayed evidence of phasic detrusor overactivity, for which there was good treatment suggested by her. Dr Manning concluded her report:
“Knee surgery is a classic trigger for overactive bladder symptoms with both knee surgery and hysterectomy commonly setting off the symptoms which often persist after the initial trigger is relieved. I've suggested review in the next couple of weeks. Pelvic ultrasound was arranged to exclude any other occult pelvic masses that could be contributing to urgency. Urine was sent for culture. Thanks again for referring Vanessa.”
[52] ARD p 120.
Dr Manning continued to treat the applicant and reported to EML on 7 December 2022:
“Phasic detrusor overactivity generally responds well to some form of treatment. The reason bladder overactivity clearly relates to the knee surgery as it seemed to commence after the knee operations and onset of back pain. Whether it relates to nerve root compression or is just a non specific nociplastic response to a pain stimulus- which is not uncommon- would be difficult to say.”[53]
[53] ARD p 124.
Dr Isaac in his report dated 6 December 2022 recorded a history of previous injuries as the applicant not having suffered from any injury to the right knee or lower back prior to the incident that took place on 15 December 2017. On the material in evidence, that is correct. He recorded that the applicant had not suffered from any pain in the back or right knee prior to that incident. That is correct so far as the right knee is concerned, but not in respect of the back. Ms Emanuel was experiencing left sided lower back pain in 2014 when treated by
Dr Scarman and Dr Barkey as noted at [37] – [40] above. However, according to the subsequent clinical notes, that does not appear to have persisted.
In respect of urinary symptoms recorded at about the same time, these were short lived, and in my view have no relevance to the significant urinary problems experienced by the applicant following the surgery to the right knee as a result of the accident on
15 December 2017.
Dr Isaacs found that the injury to the applicant’s right knee was a frank injury with a subsequent aggravation of the lumbar spondylosis being consequent upon the right knee injury. Dr Isaacs in his report reviewed the following radiological investigations of the applicant’s lumbar spine:
(a)    MRI scan of the lumbar spine dated 21 February 2019;
(b)    MRI of the lumbo-sacral spine dated 28 January 2020, and
(c)    MRI scan of the lumbar spine dated 27 May 2021.
These investigations in my view formed the basis of Dr Isaac’s finding that the applicant’s lumbar spondylosis had been aggravated consequent upon the right knee injury. I accept that opinion.
Dr Korbel, the independent medical examiner who examined the applicant in respect of her urological condition via Zoom on 19 December 2022 and produced two reports dated
18 December 2018 [sic], noted the opinion of Dr Manning that the applicant’s knee surgery had provoked the phasic detrusor overactivity she diagnosed, with lower back pain as a possible cause. Dr Korbel gave the opinion that the applicant suffered a consequential neurological injury related to her orthopaedic condition.
Based on the foregoing evidence I have summarised from the applicant’s treating medical practitioners and independent medical examiners, I think that there is sufficient evidence to find a causal connection between the frank injury to the applicant’s right knee on
15 December 2017 and conditions consequent thereon in the lumbar spine, and resulting in urinary symptoms.
However, before making such a finding, the medical evidence relied on by the respondent will be considered.

The respondent’s medical evidence

The respondent’s case at hearing was based on examination of the records of the applicant’s treating practitioners and highlighting discrepancy between what appears in those records, the applicant’s statement evidence, and the histories provided to the doctors seen by her. No attack was made on Ms Emanuel’s credibility, but rather that her evidence was not reliable, and that the opinions of the doctors on whom she relied to support her case should be treated with caution.
As I have found, I do not think that any symptoms that the applicant experienced prior to the subject accident on 15 December 2017 in respect of low back pain, urinary frequency, or depression were significant, or would cause me not to accept the opinions of the doctors whose evidence I have referred to above.
At the request of EML, Dr Powell examined the applicant on 23 September 2020 and produced a report dated 21 October 2020 attached to the ARD. Dr Powell took a history that the applicant’s lower back symptoms developed on early 2019, with no specific precipitating incident. That month recorded is that in which the “whipper snipper” incident occurred, although Dr Powell records that the symptoms developed in a gradual fashion with no specific precipitating incident. The subsequent presentation at Accident and Emergency Department at Wyong Hospital is noted when she was discharged home. There are no notes from that Department to which I have been referred.
The applicant in her statement dated 12 July 2023 describes the “whipper snipper” incident and the mechanism thereof, saying that she had to bend awkwardly because of her knee pain and the worsening of back pain thereafter. She did not mention the incident to her doctors because she did not think it was relevant. She sought treatment because of the worsening back pain.
The worsening back pain described by the applicant following that incident is consistent with the recording by Dr Bain in the WorkCover Certificate dated 30 July 2018 of secondary sciatica. I do not see this incident as breaking the chain of causation between the onset of back pain during 2018 as a result of the knee injury, and the applicant’s back condition after January 2019.
Dr Powell’s opinion proceeds on the basis that the “consequential injury involving the lower back” was accepted by the respondent’s insurer, a position not now taken by it. It would explain why, as pointed out by the applicant in submissions, the insurer paid for investigation and treatment of the back condition. Dr Powell’s report appears to have been obtained to assess whether an L5/S1 fusion requested by the applicant was reasonably necessary as a result of injury. He did not find that such was the case, and recommended continuation of conservative management.
At the request of EML, Dr Haig examined the applicant on 15 December 2017 and
[54] Reply pp 15 and 21.
30 March 2023, and produced reports dated 20 December 2022 and 28 March 2023. They are attached to the ARD, and the Reply.[54]
Dr Haig recorded an uncontroversial history of the applicant’s history and treatment and reviewed extensive documentation. On examination he found that the right lower extremity about 1 cm shorter than the left, which he believed to be an incidental finding. Dr Haig noted in terms of the applicant’s low back that radiology shows a small left sided L5/S1 disc prolapse. He addressed permanent impairment of the right knee.
In his report dated 28 March 2023 Dr Haig said:
“I inquired about her low back, though I have no reason to believe that is a work-related matter. She states it too is unchanged in terms of her complaints. She stated if reaching up, as in hanging out the washing, she experiences low back and left buttock pain.”
Under “OPINION” Dr Haig reviewed the “varying accounts in the documentation as to the mode of onset” in respect of the low back, notably those of Dr Powell and Dr Isaacs, and said “For reasons stated above I do not believe her low back condition is a consequential injury.”
Dr Mellick, neurologist, examined the applicant on 21 March 2023 and reported on
27 March 2023. He recorded a history that the applicant began to experience aching in the left lower extremity because of the awkward way she had to walk because of the symptoms in the right knee following the first operation. Dr Mellick reviewed the reports of Dr Manning, Dr Korbel and Dr Coughlan. In answer to questions put to him Dr Mellick said that there was no history of a previous condition involving the urinary tract, and that there are urinary tract issues which correlate with the history and clinical notes.
Dr Mellick found no neurological pathology responsible for the urinary problems. He said:
“I would not regard anxiety, depression or weight to be responsible for the urinary condition. There is clear history of its occurrence immediately after the first surgical procedure performed and Dr Manning’s comments clearly establish an aetiological connection with the knee pain emanating from the injury in question.”
Dr Mellick said that the treating urologist would need to elaborate on the cause of the incontinence.
In his report dated 12 April 2023 Dr Farnsworth recorded the history of the onset of left-sided lumbar pain radiating through the gluteal region down the back of the applicant’s thigh to the back of her knee, and that Ms Emanuel had had a series of interventions therapies for that pain. He also noted that starting around the same time as the development of back pain the applicant noted the onset of increased frequency of micturition which was associated with urgency and some urge incontinence which gradually became more significant over a two month period. He reviewed the records of Dr Manning.
Dr Farnsworth diagnosed bladder incontinence, with symptoms consistent with bladder overactivity which had failed to respond satisfactorily to pharmacological management and Botox injections to the bladder. Dr Farnsworth opined that the urinary symptoms were most likely triggered by onset of lumbar pain. He found no pre-existing condition, and approved the insertion of a micro stimulator as recommended by Dr Manning in the situation where conservative approaches to treatment had proved unsuccessful.

Findings

In my view after a review of the evidence I find that the applicant has established that she suffered a condition in her back consequent upon the knee injury of 15 December 2017. That condition is as diagnosed by Dr Isaacs, an aggravation of lumbar spondylosis consequent upon the knee injury. This aggravation was apparent in the medical records as early as
July 2018, as appears from the WorkCover Certificate of Dr Baines of 30 July 2018. The applicant was experiencing pain in her back on 21 January 2019 when she bent awkwardly and attempted to move the whipper snipper. I do not regard that incident as significant.
The applicant first noticed problems with urgency of the need to go to the toilet after the arthroscopy carried out by Dr Bateman on 31 August 2018 which says she put up with due to the significant problems she was experiencing with her right knee and back. The knee injury was significant, requiring eventually four surgical procedures carried out by Dr Caldwell following the arthroscopy performed by Dr Bateman. Ms Emanuel was treated by Dr Manning for the urological condition from July 2021, on referral by Dr Coughlan.
Dr Manning is of the view that the Phasic Detrusor overactivity from which he diagnosed the applicant suffering clearly relates to the knee surgery as it seemed to commence after the knee operations and onset of back pain. Dr Manning says that knee surgery is a classic trigger for overactive bladder symptoms with both knee surgery and hysterectomy commonly setting off the symptoms which can often persist after the initial trigger is relieved.
Dr Manning is less certain as to whether bladder overactivity also related to nerve root compression. Dr Farnsworth says that urinary symptoms are most likely triggered by onset of lumbar pain. I accept these opinions of Dr Manning and Dr Farnsworth.
I accept the applicant suffered a urological condition causing incontinence consequent upon injury to the right knee on 15 December 2017.

SUMMARY

The applicant suffered from a condition in the lumbar spine consequent upon injury to the right knee on 15 December 2017.
The applicant suffered from a urological condition causing incontinence consequent upon injury to the right knee on 15 December 2017.
The matter is remitted to the President for referral to Medical Assessors for assessment of permanent impairment as a result of:
(a)    injury to the right lower extremity (knee) on 15 December 2017;
(b)    a condition in the lumbar spine consequent upon injury to the right knee on
15 December 2017;
(c)    a urological condition causing incontinence consequent upon injury to the right knee on 15 December 2017, and
(d)    scarring of the right knee.
The documents to be referred to the Medical Assessors are:
(a)    ARD and attachments;
(b)    Reply and attachments, and
(c)    Certificate of Determination and Statement of Reasons.

The Medical Assessor who assesses injury to the right lower extremity (knee) and condition in the lumbar spine is to act as the lead assessor.

[2023] NSWPIC 575

31 October 2023