Finnegan v Qantas Airways Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Finnegan v Qantas Airways Ltd [2024] NSWPIC 492
APPLICANT:	Michael Finnegan
RESPONDENT:	Qantas Airways Ltd
MEMBER:	Gaius Whiffin
DATE OF DECISION:	5 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for injury to the left ankle together with consequential condition to the left knee; proposed left total knee replacement; respondent concedes liability for the left ankle injury and concedes that the proposed left total knee replacement is reasonably necessary treatment for the applicant’s left knee condition; respondent denies liability for the applicant’s alleged consequential condition to his left knee; materiality; Usher v Coffs Harbour City Council, Jones v Dunkel, Purkess v Crittenden, Kumar v Royal Comfort Bedding Pty Ltd, Kooragang Cement Pty Ltd v Bates, Moon v Conmah Pty Limited, Nguyen v Cosmopolitan Homes, Drca v KAB Seating Systems Pty Ltd, Murphy v Allity Management Services Pty Ltd, and Payne v Parker considered; Held – the applicant has sustained a consequential injury to his left knee resulting from his accepted left ankle injury; the proposed left total knee replacement surgery is reasonably necessary; proposed surgery is materially contributed to by the applicant’s left ankle injury; the respondent is to pay for the costs of, and incidental to, the said surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential injury to his left knee resulting from his accepted 13 July 2017 left ankle injury. 2. The surgery proposed for the applicant by Dr Fleming (a left total knee replacement) as referred to in his 1 April 2022 report, is reasonably necessary medical treatment and results from and is materially contributed to by the applicant’s 13 July 2017 left ankle injury. The Commission orders: 1. The respondent is to pay for the costs of and incidental to the surgery proposed for the applicant by Dr Fleming and referred to in his 1 April 2022 report (a left total knee replacement), pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Michael Finnegan (the applicant) is 65-years-old. He was employed as a domestic flight attendant by Qantas Airways Limited (the respondent) from 1994 until he was made redundant from that employment effective 17 January 2021.
He injured his left ankle whilst descending a flight of stairs in a car park at Mascot airport on 13 July 2017. The respondent has accepted liability for this left ankle injury, and has made various workers compensation payments to the applicant in the past in this regard.
The applicant also alleges that following the left ankle injury, he has sustained a consequential condition to his left knee resulting from the left ankle injury. The respondent has denied liability for this alleged consequential condition.
The applicant’s treating orthopaedic surgeon, Dr Fleming, has recommended to him that he undergo surgery to treat his left knee. On 1 April 2022, the doctor recommended that he undergo a left total knee replacement, and requested by letter that the respondent approve the costs involved in the surgery. The doctor also, on 25 July 2022, provided an estimate of his fees for performing the surgery, of $6,225.
However, the respondent issued notices dated 8 February 2023 and 28 April 2023 denying liability for the costs involved in the surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It also later reviewed its decision in this regard in accordance with s 287A of the 1998 Act, but maintained the decision in a 6 May 2024 notice.
The respondent had also earlier (by way of a notice pursuant to s 78 of the 1998 Act dated 22 December 2021) denied liability for any claim by the applicant in relation to a left knee condition resulting from the left ankle injury that it had accepted liability for.
By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Fleming, pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUE FOR DETERMINATION

The parties agree therefore that the following issue is the only issue that is in dispute:
(a) whether the reasonable need for the surgery proposed by Dr Fleming results from or is materially contributed to by the applicant’s accepted left ankle injury.

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 dispute was listed for a preliminary conference before me on 10 July 2024, and was then listed for conciliation/arbitration before me on 5 August 2024. At the conciliation/arbitration, Mr Dewashish Adhikary of counsel appeared for the applicant, instructed by Ms Mackovic. The applicant was also present, as was a reader from Mr Adhikary’s chambers (Mr Pecelj). The respondent was represented by Mr Fraser Doak of counsel, instructed by Ms Metawa and Mr Gillespie. Ms Harrison was also present from the respondent.
During the conciliation phase (both on 10 July 2024 and on 5 August 2024), the dispute was unable to be resolved. However, the following concessions were made:
(a)    the applicant confirmed that he only alleged his left knee condition to be a consequential condition resulting from his left ankle injury on 13 July 2017;
(b)    the respondent confirmed that it accepted that the applicant had sustained a compensable left ankle injury on 13 July 2017, and
(c)    the respondent advised that it accepted that the applicant’s proposed left total knee replacement was reasonably necessary as a result of his left knee condition - it maintained however that the condition did not result from the 13 July 2017 left ankle injury.
As the dispute was unable to be resolved, the issue for determination (see paragraph 8 above) was agreed by the parties, and the dispute proceeded to an arbitration hearing on
5 August 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered by me in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents, and
(c)    the respondent’s Application to Admit Late Documents dated 16 July 2024 (respondent’s AALD) and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s statement evidence

The applicant has provided a signed statement dated 22 April 2024, which is found at page 1 of the ARD.
The applicant explains how his left ankle injury on 13 July 2017 occurred. He had two weeks off work, and returned to work with a limp. He was referred to an orthopaedic surgeon
(Dr Kaplan) and underwent left ankle surgery on 21 March 2018. Following the surgery, his left foot was placed in a boot for 6 to 8 weeks.
He had further left ankle surgery on 22 May 2019 (under Dr Kaplan) and on 25 May 2020 (under Dr Ling).
He explains that prior to 13 July 2017, he had prior left knee symptoms which he had complained to his general practitioner about “over a 27 year period”. He describes however his left knee symptoms as “a minor irritation”. He did not have any form of regular treatment, and his pain or disability was only occasional and would pass. He did not need to take any time off work due to left knee symptoms.
He says:
“Following the injury to my left foot and ankle I really noticed that the knee pain had increased over time, and it was simply not going away. Although I was not always aware, my treating doctors noticed that I was walking with an altered gait prior to the ankle fusion in May 2020. I must have been walking in a way that would avoid the excruciating pain that the movement of the ankle was producing not realising that this was doing damage elsewhere…I strongly believe that the permanent and abnormal gait pattern associated with my left ankle has aggravated my left knee problems…Although my specialist did mention to me that I might need a total knee replacement at some point in my life, however there is no doubt in my mind that the fall on 13 July 2017 accelerated that process and brought the need for total knee replacement on much sooner than it would have been necessary otherwise. Prior to the fall, the need for total knee replacement was a possibility, however following the fall it was a necessity to give me back some quality of life.”
The applicant initially consulted with Dr Fleming in relation to his left knee symptoms on
26 October 2018. He says that the doctor even at that stage “started talking about needing a total knee replacement”.

Applicant’s medical evidence

There are four medical reports from Dr Fleming specifically relied upon by the applicant.
The first report is dated 29 October 2018 and found at page 42 of the ARD.
The doctor obtains the following history:
“Michael presents with left knee arthritis…Initially he had a sports injury leading to recurrent surgeries including chondroplasty of the lateral femoral condyle…He was tracking really well until last year when he injured his ankle, altering his coronal alignment leading to a precipitous decline in the clinical status of his knee…Michael has been off work over the past year recovering from foot surgery…During this time his left knee has deteriorated in its function and he has been experiencing severe pain on the lateral joint.”
On examination of the left knee, the doctor finds effusion, a correctable valgus deformity, tenderness, and some range of movement restriction. The doctor notes radiological evidence of left knee bone-on-bone arthritis on the lateral compartment with patellofemoral wear. The doctor recommends a left total knee replacement.
The doctor’s second report is dated 1 April 2022, addressed to the respondent, and found at page 15 of the ARD.
The doctor expands upon the history referred to in his 29 October 2018 report:
“Michael Finnegan presents with left knee osteoarthritis. This originated following a lateral compartment osteochondral drilling which was performed by Dr Michael Neale over 30 years ago…He managed well with his knee until he had an ankle injury, he has had a torrid time in the last 3 years with recurring surgeries of his left ankle which is now left with chronic pain and dyspepsia, this has lead to him limping and he describes that this has made his knee a lot more symptomatic.”
Otherwise, the doctor repeats the examination findings, radiological findings, and surgery recommendation referred to in his 29 October 2018 report.
The doctor’s third report is dated 12 September 2022, addressed to the applicant’s solicitors, and found at page 43 of the ARD. The doctor answers six questions posed to him by the solicitors.
Relevantly, in relation to the degree to which the applicant’s knee arthritis was affected by his 13 July 2017 left ankle injury, the doctor opines:
“The knee arthritis was aggravated by the ankle injury…Most certainly an ankle injury on the ipsilateral leg would aggravate existing osteoarthritis within the lateral joint of the knee. The impairment in coronal alignment of the ankle would provide undue coronal imbalance to the ipsilateral knee in stance phase and in gait, leading to worsening of his clinical picture…Osteoarthritis is likely to be present for some time prior to the ankle injury. However, the imbalance related to the ankle injury would provide abnormal forces over the damaged knee aggravating the condition.”
The doctor then explains that due to the applicant’s abnormal gait and the failure of conservative means to relieve his left knee symptoms, “there is a time that total knee replacement is appropriate”. The doctor considers that a left total knee replacement would provide the applicant with pain relief, stability, and quality of life.
The doctor’s final report is dated 21 July 2023, also addressed to the applicant’s solicitors, and found at page 45 of the ARD.
The report largely provides opinions regarding the effectiveness of total knee replacement surgery in relation to the applicant. The doctor advises that the applicant’s left knee has become progressively worse with associated quadriceps weakness and loss of range of movement, and the doctor advises that the applicant’s instability is his main concern. He recommends total knee replacement as “very good at addressing these features”. He also specifically disagrees with an opinion expressed by Associate Professor Miniter that lateral compartment partial knee replacement would be appropriate for the applicant, opining that the extent of the applicant’s pathology would lead to early revision if that surgery was undertaken.
The ARD also contains clinical records provided by the doctor to the applicant’s solicitors – from page 53. The records contain consultation notes, referrals, surgery cost estimates, and radiological reports, as well as additional reports from the doctor dated 2 November 2018,
20 March 2020, and 30 March 2022. I have considered the entirety of the records and will refer to them further if specifically directed to aspects of them during the parties’ submissions. I do however note that the records:
(a)    refer (in the doctor’s 2 November 2018 report) to the applicant’s left ankle injury changing the alignment of his leg and “leading to overload on the lateral aspect of his knee”;
(b)    refer (in the doctor’s 20 March 2020 report) to the applicant walking with an antalgic limp due to his ankle pain, and
(c)    provide (in the doctor’s 30 March 2022 report) the following potentially inconsistent opinion from the doctor:
“Michael will require a left total knee replacement, he is keen to try to associate his left knee decline with his left ankle injury however l feel that this is a bit of a stretch as he had lateral compartment osteochondral drilling performed by Michael Neale 30 years ago and the arthritis is certainly pre existing his ankle injury. However his arthritis will certainly become more symptomatic as a result of his limping.”
The applicant also relies upon opinions provided by a medical-legal orthopaedic surgeon,
Dr Bodel.
The doctor initially consulted with the applicant on 1 June 2021 and provided a report on that date, which is found at page 20 of the ARD.
The doctor does not obtain any specific history of the development of the applicant’s left knee symptoms following his left ankle injury on 13 July 2017. However, when describing the applicant’s current complaints, he states that “the abnormal gait pattern associated with his ankle has now put an undue strain on the knee and aggravated that in recent times”. He notes that the applicant had a previous injury to his left knee, but incorrectly notes that the injury occurred in around 2003 and was treated at the time by Dr Fleming.
The doctor then notes the following examination findings in relation to the left knee:
“he walks with a flat-footed gait pattern and this is worse in bare feet. He also tends to walk with his foot externally rotated. This helps to diminish the link because of the stiff ankle...He has an increased valgus angulation in the region of the left knee. He has had a lateral meniscectomy in 2003 and it appears that he does have some post-traumatic osteoarthritis in that knee with that increased valgus angulation…He has a restricted range of knee movement on the left.”
In relation to specific questioning from the applicant’s solicitors, the doctor opines that due to the applicant’s permanent abnormal gait pattern, his left foot and ankle injury has aggravated previous pathology in the region of his left knee. He also opines that as a result, the applicant’s “employment injury is the main substantial contributing factor to the ongoing pathology”.
In a separate report also dated 1 June 2021 (found at page 27 of the ARD), the doctor assesses the applicant with 4% whole person impairment in relation to his left knee, and adds:
“The injury to the knee is the aggravation, acceleration, exacerbation and deterioration of pre-existing degenerative change associated with an open lateral meniscectomy 40 years ago. The abnormal gait pattern and the nature of work over many years as a flight attendant has led to the aggravation, acceleration, exacerbation and deterioration causing the knee problem.”
The doctor consults with the applicant again on 29 September 2023 and provided a report on that date, which is found at page 30 of the ARD.
The doctor now obtains a more correct history of the applicant’s left knee symptoms prior to 13 July 2017:
“I also note that he has had an injury to the left knee many decades ago and required an open lateral meniscectomy, probably in the 1970s. This was before he began work at Qantas and his knee had been functioning quite well while at Qantas but it has begun to become painful after the ankle injury and particularly the further surgeries including the eventual fusion.”
The doctor obtains a history that the applicant has ongoing pain and stiffness in the left knee, and restrictions with kneeling, squatting, and climbing. He has an abnormal gait pattern associated with his left ankle injury which “is putting an undue strain on the valgus deformity in the left knee which has been developing over the decades following the original open lateral meniscectomy”. The doctor notes that it has been recommended to the applicant that he undergo a left total knee replacement.
On examination, the doctor finds pseudolaxity in the lateral side of the left knee, joint line tenderness, restricted range of left knee movement, increased valgus angulation in the left knee of approximately 10°, and wasting of the left thigh and calf.
In relation to specific questioning from the applicant’s solicitors, the doctor opines:
“He has also developed the persisting limp and the further difficulty following the major surgical procedures, has aggravation, acceleration, exacerbation and deterioration underlying pre-existing degenerative change in the left knee relating back many decades to a previous open lateral meniscectomy…He came to the work at Qantas in 1994 without any particular symptomatic abnormality in the region of the left knee…He then continued to work throughout his career with Qantas as a flight attendant until after the injury to the left ankle where there has been the increasing symptoms in the left knee by way of aggravation, acceleration, exacerbation and deterioration to the underlying disease process which had been developing over the years from the time back when he had his original surgery…I do consider that employment is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to the disease processes both in the ankle and in the knee.”
In a separate report dated 29 September 2023 (found at page 39 of the ARD), the doctor assesses the applicant with 10% lower extremity impairment in relation to the left knee, but advises that the assessment is tentative because of his need for a total knee replacement “which is reasonably necessary for the management of his injury and that injury is the aggravation, acceleration, exacerbation and deterioration of that disease process in the knee and that will significantly alter the overall level of impairment”.
The applicant further relies upon a report obtained from his treating general practitioner,
Dr Bray, dated 21 December 2023. The report is found at page 50 of the ARD.
The doctor confirms that he has been treating the applicant since 1993, and that the applicant has long-standing left knee pathology from an injury more than 30 years ago and from a lateral compartment osteochondral drilling which was then performed upon him.

He also confirms that the applicant’s left ankle and foot injury on 13 July 2017 “has been very detrimental” to his left knee condition. He explains:
“Before this time, Mr Finnegan's L knee was occasionally painful, but he maintained good physical fitness and mobility. The L foot and ankle condition, and multiple operations required including a fusion procedure, placed abnormal and excessive biomechanical strain on his already compromised L knee joint. The L knee injury was therefore significantly aggravated, and the degenerative changes in in the joint have been accelerated to the point that his L knee is permanently swollen, tender, and painful to weight bearing.”
The doctor opines that a total knee replacement is the only surgery likely to correct “his pain and deformity”.
Aside from the opinions expressed by Drs Fleming, Bodel, and Bray, the applicant also relies upon the following medical records in the ARD:
(a)    a report from a podiatrist (Philip Perry) dated 15 October 2018 (found at page 14) - the report recommends certain footwear for the applicant as he has experienced lateral loading of his left knee following recent left ankle surgery;
(b)    reports from a physiotherapist (Jenenne McKenzie) dated 3 March 2022 (found at page 48) and 6 February 2024 (found at page 49) - the first report explains how the applicant’s left knee pain, swelling and restriction of movement was limiting his left ankle physiotherapy treatment, and it also explains that the applicant was then also having physiotherapy treatment for his left knee symptoms – the second report answers various questions posed to the physiotherapist by the applicant’s solicitors and opines:
“Michael had previously had knee surgery due an injury from sport. However, the left knee did not cause problems or plague Michael prior to the ankle injury…Michael was fully fit for his duties prior to the ankle injury, able to walk and exercise at the gym multiple times a week. Michael’s knee developed further osteoarthritis leading to reduced strength and muscle tone due to the ankle injury. Michael was unable to sustain regular exercise and reduce osteoarthritis development due to multiple surgeries on his ankle and the ongoing inability to complete lower limb weight bearing exercises due to ankle pain”;
(c)    a report from a pain specialist (Dr Chow) dated 13 February 2024 (found at page 51) - the report diagnoses the applicant with left knee osteoarthritis and advises that the doctor’s assessment “unveiled an asymmetrical presentation of musculature in the left lower limb compared to the right, with restrictions in left foot functionality, and enduring post-knee arthroplasty pain, complicated further by notable deformity”, and
(d)    clinical records from 360 Degree Physio, Beachside Physio, Dr Ling, Dr Kaplan, and Burraneer Family Practice - I have considered these records but will only further detail those records specifically submitted to me to be relevant during the parties’ submissions, as well as the records specifically relied upon by the respondent as detailed in the Reply (see paragraph 65 below).

Respondent’s medical evidence

There are four reports from Associate Professor Miniter in evidence.
The first report is dated 15 November 2021 and found at page 12 of the Reply. The report followed the applicant’s consultation with the doctor on 4 November 2021.
The doctor does not take any history of how the applicant’s left knee symptoms increased following his injury on 13 July 2017. In fact, the only information that the doctor obtained from the applicant in relation to his left knee was the following:
“He had a previous injury to the left knee and had an arthroscopy by an Orthopaedic Surgeon. He felt that this was probably Dr Alan Turnbull as he lives in the Sutherland shire. This possibly involved a lateral meniscectomy.”
The doctor does however examine the applicant’s left knee and finds it to be stable with a “remarkably well developed” range of motion. The doctor notes significant osteoarthritic change and a valgus knee deformity. The doctor concedes that the applicant has a “genuine disability” in relation to his left knee.
Despite his lack of history, the doctor opines (in relation to questions posed to him by the respondent’s solicitors):
“The condition in the left knee is that of pre-existing osteoarthritic change…In my opinion, the opinion by Dr Bodel in relation to the left knee is incorrect. This gentleman simply has an issue that is pre-existing and this matter is unrelated to any workplace issue…There is no evidence of aggravation of the left knee in the course of his employment…His employment is not the main contributing factor to the left knee injury…The matter in relation to the left knee probably began in the early 2000s.”
The doctor does not provide any additional reasoning for these opinions.
The doctor’s second report is dated 29 March 2023 and found at page 23 of the Reply. The report followed the applicant’s consultation with the doctor on 27 March 2023.
The doctor still does not take a history from the applicant of his left knee symptoms other than – “He does not clearly recall injuring his knee but his knee has been a problem for a long time”.
He does however note that Dr Fleming recommends that the applicant undergo a left total knee replacement, and opines:
“How it is that this is related to his original business is not a matter that I can determine and as will be seen in this report, the simple fact that he has had an issue with his ankle does in no way relate itself to his knee. I was interested to read the letter from Dr Fleming who believes that there is an association between the two issues. The medical literature dispels such myths.”
The doctor however does not reference or provide any of the relevant “medical literature”.
The doctor then goes on to provide the following blunt opinions (in relation to questions posed to him by the respondent’s solicitors):
“I have given you a further relevant history…The left knee symptoms have been discussed. These are moderate in intensity and with the main focus being on his left ankle, it seems that the knee has been given far less attention…As far as I could determine, the matter itself has been pre-existing in its entirety. I have discussed this in my previous report and see no reason to change my opinion…He has lateral compartmental osteoarthritis of the left knee…There is no association between the left knee and the left ankle.”
In relation to treatment recommendations, the doctor advises that a left total knee replacement is reasonable treatment for the applicant, but its need is not related to the
13 July 2017 injury.
The doctor’s third report is dated 3 July 2024 and found at page 29 of the Reply. The report is a file review and simply answers three questions posed to him by the respondent’s solicitors, all with the answer – “No”. The questions related to:
(a)    whether the applicant’s 13 July 2017 injury materially contributed to the need for his left total knee replacement;
(b)    whether the injury brought forward the need for the left total knee replacement, and
(c)    whether the left total knee replacement was reasonably necessary as a result of the injury.
The doctor’s final report is dated 15 July 2024 and found at page 1 of the respondent’s AALD. The report is also a file review. It initially summarises documentation provided to the doctor by the respondent’s solicitors in relation to the applicant’s left knee symptoms prior to 13 July 2017.
The report then quotes from Dr Fleming’s 30 March 2022 report (as extracted at paragraph 33(c) above - except that Associate Professor Miniter does not quote the final sentence of that extract), and states:
“In truth, that is all that needs to be said about the matter. Dr Flemming appropriately indicates that the matter itself in relation to the knee is not related to the ankle and you will note that this has been my firm and unwavering opinion.”
The doctor is then asked the same three questions that he was asked when he prepared his 3 July 2024 report (see paragraph 61 above), and while not simply answering “No” on this occasion, he does not provide any reasoning for his negative opinions, other than:
“The medical literature is clear in this regard whereby there is no association between the concept of overuse or imbalance and the development of issues otherwise in the skeleton. In addition, Dr Mark Flemming has appropriately commented that there is no link between the two.”
Apart from Associate Professor Miniter’s reports, the Reply also specifically references some clinical records relied upon by the respondent, and which are attached to the ARD – see paragraph 50(d) above. These were also the records that were provided to Associate Professor Miniter, and which he reviewed when providing his 15 July 2024 report – see paragraph 62 above.
The clinical records referenced in this regard are:
(a)    a report from Phillip Richardson (physiotherapist) dated 18 May 2009 (found at page 502 of the ARD) - the physiotherapist finds evidence of osteoarthritic changes in the applicant’s left knee and flexion restrictions – he refers to the applicant having “a deal of trauma/surgery to the knee” and he provides the applicant with a comprehensive knee rehabilitation program;
(b)    a report from Dr Neil (orthopaedic surgeon) dated 18 February 2010 (found at page 504 of the ARD) - the doctor records that the applicant “limps a bit” and his left knee throbs at the end of a day, as well as that he takes Mobic intermittently - the doctor reviews x-rays confirming progressive lateral compartment osteoarthritis of the left knee, and he finds clinically a Baker’s cyst behind the left knee, but he also finds “quite good” left knee function and minimal pain on valgus stress – the doctor recommends to “leave things well alone”, although the doctor advises that a lateral unicompartmental knee replacement will eventually be needed “when symptoms dictate but at present I do not believe his symptoms are manic enough to warrant this”;
(c)    a report from Dr Popoff (orthopaedic surgeon) dated 9 February 2011 (found at page 520 of the ARD) - the doctor records that the applicant had a “long history of problems with his left knee”, including multiple arthroscopies and “what sounds like partial and possibly a total lateral meniscectomy” - in relation to his left knee, the doctor finds “a recurrent Baker’s cyst rather than frank pain at present”, some muscle wasting, an effusion, and mild lateral pseudolaxity – the doctor arranges x-rays which show osteoarthritic changes in the left knee lateral compartment, and the doctor injects the left knee with a combination of local anaesthetic and corticosteroid - the doctor recommends a short course of anti-inflammatory medication and regular strengthening exercises in the gym;
(d)    a medical certificate from Dr Petersen (general practitioner) dated
6 November 2012 (found at page 836 of the ARD) - the doctor certifies the applicant as being unfit for work for three days due to an acute knee injury, possibly a meniscal tear or an osteochondral injury;
(e)    a referral from Dr Petersen to Dr Neil dated 31 May 2012 (found at page 834 of the ARD) - the referral refers to the applicant’s complaints of left knee pain which wakes him at night after long work days, swelling/tightness of the knee, and wasting of the quadricep muscles – the referral also notes the applicant’s history of left knee osteoarthritis since 2003;
(f)    a report from Dr Neil dated 4 March 2013 (found at page 528 of the ARD) - the report refers to the applicant’s severe osteoarthritis in his left knee which has been managed conservatively for many years – it refers to a left knee hyperextension injury that the applicant suffered in June 2012 but which had settled down - the doctor again advises that joint replacement surgery will be ultimately needed but that the applicant “should be managed conservatively for as long as possible”;
(g)    a referral from Dr McDowell (general practitioner) to an unidentified physiotherapist dated 10 September 2013 (found at page 840 of the ARD) - the referral refers to the applicant’s complaints of severe left knee osteoarthritis with quadriceps wasting and the applicant’s need for strengthening exercises;
(h)    a report from Dr Kaplan (who performed the first two surgeries to the applicant’s left ankle following his 13 July 2017 injury) dated 14 November 2017 (found at page 284 of the ARD) - the report refers to the applicant as having undergone five previous surgeries to his left knee;
(i)    a left knee x-ray report dated 19 October 2009 (found at page 812 of the ARD) - the findings include moderate lateral compartment joint space narrowing, a suspicion of an osteochondral lesion within the lateral femoral condyle, slight irregularity to the medial femoral condyle, and patellofemoral joint degenerative change;
(j)    a left knee x-ray report dated 21 September 2018 (found at page 255 of the ARD) - the findings include marked osteoarthritic changes throughout the tibiofemoral and patellofemoral joint compartments, valgus deformities, and a mild suprapatellar bursal effusion, and
(k)    a left knee x-ray report dated 19 March 2019 (found at page 243 of the ARD) - the findings are very similar to the findings in the 21 September 2018 left knee x-ray report.
The Reply also references the clinical records attached to the ARD from Dr Kaplan, Dr Ling, and Burraneer Family Practice, as well as itself attaching clinical records from Dr Fleming. I have considered these records but will only further detail those records specifically submitted to me to be relevant during the parties’ submissions.

Applicant’s submissions

The applicant’s submissions were made orally on 5 August 2024. They have been recorded, and I will not repeat them in detail.

The applicant commences by emphasising that he not only suffered an injury to his left ankle on 13 July 2017, but has since required three surgeries to the ankle, including fusion surgery.
The applicant concedes that he has underlying osteoarthritis to his left knee, and that consideration had been given by his treating medical practitioners to a left total knee replacement prior to 13 July 2017. However, it was not until after his left ankle injury on that date that his treating medical practitioners actually recommended the total knee replacement.
The applicant submits that for him to be successful, only a finding is needed that his accepted left ankle injury materially contributed to his current left knee symptoms and his need for surgery. It is not necessary for the applicant to establish left knee pathology resulting from the ankle injury, and it is also not necessary for that injury to be the sole or even a substantial contributing factor to the left knee symptoms and the need for surgery.
The applicant relies upon Dr Bray’s 21 December 2023 report (especially the extract quoted at paragraph 48 above) and his clinical records (found from page 292 of the ARD). The applicant makes the following points in relation to the clinical records:
(a)    the first mention of left knee pain was on 21 April 2004;
(b)    there are then “sporadic” mentions of left knee pain prior to 13 July 2017, although none after 14 March 2014;
(c)    the first mention of left knee pain after 13 July 2017 was on 7 September 2018, although there were mentions of limping due to the applicant’s left ankle issues prior (I have found mentions on 13 November 2017, 21 February 2018, and
6 July 2018);
(d)    on 10 March 2020, the doctor records in relation to his management of the applicant – “Counselled at length, I thyink [sic] Michael bneeds [sic] to probablky [sic] have the TKR regardless. Advised him to tell Qantas, which he wants to do, and that this is a pre-existing OA, but the condition has probably been exacerbated by the foot injury”;
(e)    on 6 January 2021, the doctor records in relation to the history given to him – “Michael feels he had about 16 years of no L knee pain until it began to flare in recent years”, and
(f)    the records therefore demonstrate that the applicant’s left knee only became troublesome to the extent that surgery was needed, after the development of his left ankle issues.
The applicant then takes me to the following evidence:
(a)    Dr Neil’s reports dated 18 February 2010 and 4 March 2013 - recommending against left total knee replacement surgery on those dates;
(b)    Philip Perry’s report dated 15 October 2018 – providing contemporaneous evidence of the change in alignment of the applicant’s left leg following his left ankle injury;
(c)    Dr Kaplan’s report dated 23 December 2019 (found within the doctor’s clinical records at page 222 of the ARD) - confirming the disappointing outcome of the surgeries that the doctor had performed upon the applicant’s left ankle, and the applicant’s resultant ongoing issues with the ankle;
(d)    Dr Fleming’s reports dated 29 October 2018, 2 November 2018, 20 March 2020, 30 March 2022, 1 April 2022, 12 September 2022, and 21 July 2023 - especially the extracts quoted at paragraphs 23, 26, 29, and 33(c) above (the applicant specifically draws my attention to the final sentence of the extract at paragraph 33(c)) - the applicant submits that the doctor’s opinions are consistent, he is aware of the applicant’s underlying left knee osteoarthritis, and he is clear in his opinion that the applicant’s left ankle injury affected the coronal alignment of his left leg, leading to his left knee condition worsening with time, and
(e)    Jenenne McKenzie’s reports dated 3 March 2022 and 6 February 2024.
In relation to Dr Bodel’s reports, the applicant submits that his opinions are consistent with the evidence from the applicant’s treating practitioners with regard to describing the applicant’s left knee symptoms and the changes to the applicant’s gait created by the applicant’s left ankle injury. The doctor was also cognisant of the applicant’s underlying left knee issues. The applicant particularly draws my attention to the extract quoted at paragraph 44 above.
When questioned by me as to the doctor’s inadequate history taking, the applicant concedes that the doctor’s first report is not particularly specific, but then draws my attention to the extract quoted at paragraph 41 above from the doctor’s second report.
The applicant therefore submits that I have more than sufficient medical evidence to find that his left ankle injury materially contributed to his current left knee symptoms and his need for a left total knee replacement.
Finally, the applicant refers to the reports of Associate Professor Miniter and urges me not to provide them with any weight as:
(a)    his opinions are contrary to the other evidence before me;
(b)    in his first report, he does not address the proposition that the applicant’s current left knee condition is consequential to his left ankle injury - only addressing whether the left knee was aggravated in the course of employment – see the extract quoted at paragraph 55 above;
(c)    in his other reports, he seems to discount that a consequential condition of the left knee resulting from a left ankle injury is a proposition that can ever be accepted - see the extracts quoted at paragraphs 58 and 64 above - he also fails to provide the medical literature referred to in these extracts;
(d)    his selected quoting of Dr Fleming (see paragraph 63 above) reveals that he has not been objective, and
(e)    he does not provide reasoning to substantiate his opinions.

Respondent’s submissions

The respondent’s submissions were also made orally on 5 August 2024. They have also been recorded, and I will not repeat them in detail.
The respondent commences by asserting that the medical evidence relied upon by the applicant confuses the legal test to be applied, which is that the alleged consequential condition must materially contribute to the need for surgery, for the applicant to be successful.
The respondent submits that Dr Bodel’s opinions do not assist me as he seems to consider the applicant’s left knee condition to be due to his employment, rather than a consequential condition resulting from his left ankle injury. The respondent refers to the extract quoted at paragraph 44 above in this regard.

The respondent submits that Dr Bray’s 21 December 2023 report is not acceptable as its reasoning is inadequate and as it does not accord with “a sound and accurate recitation of the history” in the doctor’s clinical records. In this regard, the respondent directs me to the following entries in the clinical records:
(a)    21 April 2004 – left knee “sore daily” - applicant had seen Dr Neil;
(b)    31 August 2004 – left knee tenderness noted;
(c)    23 November 2005 – left knee osteoarthritis noted as a reason for visit;
(d)    16 October 2009 – left knee osteoarthritis noted as a reason for visit;
(e)    15 February 2010 – left knee “troublesome”;
(f)    7 February 2011 – left knee osteoarthritis noted as a reason for visit;
(g)    28 May 2012 – “knees and hips prevent wt bearing exercise at gym, even cycling”;
(h)    31 May 2012 – “can’t bend the knee” - referred to Dr Neil, x-ray ordered, and medication prescribed;
(i)    6 November 2012 – following incident at work, applicant unable to fully weight bear or extend the left knee - a possible meniscal tear or osteochondral injury diagnosed;
(j)    10 September 2013 – severe left knee osteoarthritis noted;
(k)    17 February 2014 – noted that left knee pain was preventing the applicant from cycling, running, and training, and
(l)    14 March 2014 – left knee osteoarthritis noted and referral for exercise physiology made.
The respondent criticises the opinions of Dr Bray, as well as the opinions of Dr Fleming, as not being “well-versed” in the legal test to be applied (see paragraph 79 above). Their reliance upon an increase in the applicant’s left knee symptoms is not determinative that the increase in symptoms leads to the need for the left total knee replacement. Dr Fleming’s opinion is unclear in “confounding the osteoarthritis and the pathology with the symptoms - nowhere does Dr Fleming say this is just due to the symptoms”. There is no evidence that “there is an underlying condition here which has reached the point where he’s got these symptoms and the need for surgery is because of the symptoms”. There is underlying pathology (osteoarthritis), and while Dr Fleming (in his 30 March 2022, 1 April 2022, and 12 September 2022 reports) mentions the applicant’s increase in symptoms, he does not address whether the underlying pathology would have led to the current need for surgery in any case, especially where there is an expectation (from Dr Neil) that the underlying pathology will eventually lead to the need for a left total knee replacement.
When questioned by me as to why the relevant expectation would not be that the applicant would come to the need for a left total knee replacement when he was more symptomatic, the respondent agreed but argued “one gets to a point with a degenerative knee that it will need to be replaced” and “without the underlying pathology, would that have occurred simply with the left ankle”. The respondent says that Dr Bodel’s opinion is not helpful and Dr Fleming’s opinion is unclear. The respondent also refers me to the decision of Wood DP in Usher v Coffs Harbour City Council [2022] NSWPICPD 9 (Usher).
The respondent further criticises the applicant for not obtaining a further report from Dr Neil, who would have been in “a perfect position” to provide an opinion regarding the material contribution of the applicant’s left knee symptoms following his left ankle injury, to his current need for a left total knee replacement. The respondent requests that I draw an inference in this regard pursuant to the rule in Jones v Dunkel [1959] HCA 8 (Jones v Dunkel).
The respondent finally deals with the reports from Associate Professor Miniter and describes them as providing definitive opinions. However, when questioned by me as to why the doctor does not take a history of the applicant’s left knee symptoms, such as limping, after his ankle injury, or why the doctor does not specifically consider left knee radiology, the respondent conceded that the reports could have been “set out in more detail”. Further, when I stated that I expected much more reasoning and explanation in the reports (as well as in Dr Bodel’s reports), the respondent agreed.

Applicant’s submissions in reply

These submissions were also made orally on 5 August 2024. They have also been recorded, and I will not repeat them in detail.
The applicant relies upon Purkess v Crittenden [1965] HCA 34 (Purkess) and submits that the respondent has not adduced sufficient evidence to prove that the applicant’s pre-existing condition would have in any event lead to his current need for a left total knee replacement, despite the increase in his left knee symptoms following his left ankle injury.
The applicant submits that a left total knee replacement was not proceeded with by Dr Neil in 2013 specifically because there was no clinical or symptomatic basis for it. However, “all that changed after what occurred in 2017”.
The applicant also submits that Dr Fleming, while certainly detailing the applicant’s increase in left knee symptoms, does not solely deal with symptomatology. For example:
(a) in his 29 October 2018 report (see paragraph 23 above), he refers to a “precipitous decline in the clinical status of his knee”, and
(b) in his 21 July 2023 report (see paragraph 32 above), he refers to his main concern as being the stability of the applicant’s left knee.
Finally, the applicant submits that I should not draw a Jones v Dunkel inference in relation to the applicant’s failure to obtain a further report from Dr Neil as the doctor is “not in the applicant’s camp”. Further, there would have been no obstacle to the respondent obtaining a further report from Dr Neil.

FINDINGS AND REASONS

Whether the reasonable need for the surgery proposed by Dr Fleming results from or is materially contributed to by the applicant’s accepted left ankle injury

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In this regard, in Kumar v Royal Comfort Bedding Pty Limited [2012] NSWWCCPD 8 (Kumar), Roche DP provided a useful summary of what was said by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) [at 46-48]:
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate’. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
‘The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with ‘an unbroken chain of undisputed evidence’. In combination, the facts went ‘beyond mere predisposing circumstances’. They combined to make it ‘proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train’. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”

In Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon), Roche DP stated:
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
As discussed in Moon, all the applicant has to establish is that he developed symptoms and restrictions in his left knee which resulted from his accepted left ankle injury on 13 July 2017. The applicant attempts to establish this by alleging that the left ankle injury led to an altered gait, limping, and undue coronal imbalance to his left knee. As a result, his pre-existing left knee symptoms were significantly aggravated, leading to his current need for a left total knee replacement. Whether the applicant can establish this is (as noted by Kirby P in Kooragang) a question of fact to be determined following a “commonsense evaluation of the causal chain”, on the basis of the evidence, including expert opinions.
In assessing the medical evidence presented by the parties in this regard, I do not find the opinions expressed by Associate Professor Miniter to be reliable and I do not propose to afford weight to them. I make the following comments:
(a)    the doctor’s opinions are contrary to the medical opinions expressed by the applicant’s current treating orthopaedic surgeon (Dr Fleming), the applicant’s long-time general practitioner (Dr Bray), as well as Dr Bodel;
(b)    the doctor does not record any adequate history that he obtained from the applicant as to how the applicant’s left knee symptoms increased after the
13 July 2017 injury - see paragraphs 53 and 57 above;
(c)    the doctor’s opinions are brief and blunt, and in my opinion, they lack the explanation expected from a qualified medico-legal specialist - see paragraphs 55, 59, and 61;
(d)    the doctor appears to me to be unwilling to accept the proposition that there could be any association between “the concept of overuse or imbalance and the development of issues otherwise in the skeleton” - see paragraph 64 above – this is however a concept that is regularly accepted (when there is appropriate evidence) by the Commission, and was indeed the concept accepted in Moon;
(e)    the doctor refers to “medical literature” as “clear” in supporting his opinions and dispelling “myths” that there could be an association between the applicant’s left ankle injury and consequential symptoms and restrictions in the applicant’s left knee – however, he does not quote from or even reference this medical literature, which is particularly unhelpful to me;
(f)    the doctor does not comment upon any left knee radiology of the applicant’s, and
(g)    I otherwise accept the applicant’s submission referred to at paragraph 77 above, and note the respondent’s concessions referred to at paragraph 85 above in relation to the lack of detail and reasoning in the doctor’s reports.
The applicant’s statement evidence is uncontradicted, and there has been no submission made that I should not accept it. I intend to do so.
The applicant says that he has had left knee symptoms for 27 years, but they were only a minor irritation prior to his left ankle injury. He complained to his general practitioner (Dr Bray) about the symptoms, but he otherwise had no form of regular treatment. He had been told that he would need a left total knee replacement, but he says that it was only after the left ankle injury that the total knee replacement was “a necessity to give me back some quality of life”.
The applicant’s statement evidence in this regard is consistent with the clinical records from Dr Bray. These records (see paragraph 81 above) show:
(a)    12 complaints of left knee pain to Dr Bray between 21 April 2004 and
14 March 2014;
(b)    the complaints were generally irregular and sporadic;
(c)    the complaints generally did not require follow-up appointments;
(d)    the complaints seem to have only led to a referral for radiology once on
19 October 2009 - see report referred to at paragraph 66(i) above, and
(e)    there were no complaints of left knee pain between 14 March 2014 and the date of the applicant’s left ankle injury on 13 July 2017.
The complaints do refer (particularly on 31 May 2012, 6 November 2012, and
17 February 2014) to quite significant left knee symptoms, and there is also evidence of the applicant being referred to physiotherapy for the complaints in 2009 (see paragraph 66(a) above) and in 2013 (see paragraph 66(g) above). However, the irregular and sporadic nature of the complaints is suggestive of a left knee condition that was troublesome but able to be controlled by the applicant and his treating practitioners, prior to 13 July 2017.
The applicant’s statement evidence is also consistent with Dr Neil’s reports dated
18 February 2010 and 4 March 2013. The doctor finds “quite good” left knee function and only slight limping, and he notes that the applicant’s left knee throbs at the end of a day as well as that the applicant takes Mobic intermittently, in his 18 February 2010 report. He opines in that report that the applicant would eventually need a left total knee replacement but that the applicant’s symptoms at that stage did not warrant such surgery. He specifically advises to “leave things well alone”. The doctor then repeats his advice in his 4 March 2013 report that the applicant’s condition should be managed conservatively for as long as possible.
It is also to be noted that Dr Popoff only recommended conservative treatment for the applicant’s left knee condition when he consulted with the applicant on 9 February 2011.
In contrast, the applicant’s complaints to his treating practitioners regarding his left knee symptoms after 13 July 2017, have been of significantly greater symptoms. Dr Fleming records on 29 October 2018 the applicant’s complaints of a deterioration in his left knee function and the experiencing of “severe” left knee pain since 13 July 2017. The doctor then records on 1 April 2022 that the applicant has had a “torrid” time with recurring ankle surgeries, which has led to him limping and made his left knee a lot more symptomatic. Further, Dr Bray’s 21 December 2023 report notes that the applicant’s left ankle injury has been “detrimental” to his left knee condition, accelerating degenerative changes in the knee and leading to the knee being permanently (rather than sporadically) swollen, tender, and painful to weight bearing.
I intend to afford significant weight to the opinions provided by Drs Fleming and Bray. In my opinion, they are placed in the best position to provide opinions regarding the applicant’s left knee condition due to their history of treating that condition. Dr Fleming has consulted with the applicant for almost six years now, and Dr Bray has been the applicant’s treating general practitioner since 1993.
The opinions of both doctors are quite clear that there is a causal relationship between the applicant’s current left knee symptoms and his accepted left ankle injury.
Dr Bray is of course completely aware of the nature of the applicant’s left knee symptoms and pathology prior to 13 July 2017. He had all his clinical records to evaluate, including a radiological report, physiotherapy reports, as well as reports from Drs Neil and Popoff. He opines (see the extract from his 21 December 2023 report quoted at paragraph 48 above) that the applicant’s left knee was only occasionally painful prior to 13 July 2017, that the applicant’s left ankle injury placed “abnormal and excessive biomechanical strain” on the applicant’s left knee, and that as a result the applicant’s left knee condition has been aggravated and accelerated such that there are now permanent symptoms.
I reject the respondent’s submission at paragraph 81 above that Dr Bray did not consider a sound and accurate recitation of the applicant’s left knee symptoms prior to 13 July 2017. The sporadic and irregular nature of those symptoms, together with the treatment recommendations for the symptoms made by Drs Neil and Popoff (as well as indeed Dr Bray), are in my opinion consistent with the doctor’s recording in his report of long-standing left knee pathology that was only occasionally painful prior to 13 July 2017 and that did not prevent the applicant from maintaining good physical fitness and mobility prior to that date.
Dr Fleming is also aware of the applicant’s past history of left knee symptoms and arthritic condition. He obtains however what I find to be a correct history from the applicant, that the applicant was “tracking really well until last year when he injured his ankle” (see the extract from the doctor’s 29 October 2018 report quoted at paragraph 23 above). The left ankle injury altered the applicant’s coronal alignment leading to a decline in the clinical status of his left knee. The left ankle injury led to the applicant limping and to imbalance, providing “abnormal forces over the damaged knee aggravating” the applicant’s osteoarthritis condition, which had been present for some time (see the extract from the doctor’s 12 September 2022 report quoted at paragraph 29 above).
It is apparent that Dr Fleming is consistent in his various reports with his recording of the applicant’s limping and gait issues as a result of the applicant’s left ankle injury, which have overloaded the applicant’s left knee. By the time of the doctor’s final report on 21 July 2023, the left knee had progressively worsened with quadriceps weakness, loss of range of movement and instability.
The respondent seeks to rely upon the extract from Dr Fleming’s 30 March 2022 report quoted at paragraph 33(c) above. The extract would appear to be inconsistent with the doctor’s other opinions, but in my opinion, the extract does little more than confirm that the applicant’s left knee osteoarthritis existed prior to his left ankle injury, but became more symptomatic as a result of his limping following that injury. Further, when specifically asked for causation opinions by both the respondent and the applicant’s solicitors, Dr Fleming’s reports dated 1 April 2022, 12 September 2022, and 21 July 2023 are consistent in opining as to an unbroken chain of causation between the applicant’s left ankle injury, his subsequent limping and imbalance, and the resulting worsening in the clinical status of his left knee.

Dr Bodel also provides some support to the opinions of Drs Fleming and Bray, even though the weight to be given to the doctor’s opinions is affected by his inclusion of the nature of the applicant’s work as a flight attendant as a causative factor to the applicant’s current knee condition - see paragraphs 39 and 44 above. The doctor’s history taking and detailed reasoning is also in my opinion deficient, but not as deficient as Associate Professor Miniter’s.
Nevertheless, Dr Bodel supports the proposition that the applicant’s abnormal gait pattern associated with his left ankle injury has put an undue strain on his left knee and aggravated previous pathology in his left knee – see paragraph 38 above. Further, while the doctor’s opinion in the extract from his second report quoted at paragraph 44 above is not overly clear, the doctor in my opinion does draw a causative link in that extract between the applicant’s limping and the increasing symptoms in his left knee, with the doctor saying that as a result there has been an aggravation, acceleration, exacerbation and deterioration of the applicant’s underlying pre-existing left knee degenerative changes.
In accordance with Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), in order to find that the applicant has sustained a left knee consequential condition, I need to feel a sense of actual persuasion that he has met his onus of proof in this regard.
In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca), Roche DP stated:
“103. Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
104.   A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
105.   Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
106.   The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
Having regard to my acceptance of the applicant's statement evidence, together with my reliance upon the consistent opinions expressed by Drs Fleming, Bray, and (to a lesser extent) Bodel, I am in fact comfortably satisfied that the applicant has met his onus of proving that he has sustained a consequential left knee condition as a result of the accepted injury to his left ankle that he sustained on 13 July 2017. After evaluating all the evidence presented, and applying the commonsense test necessary per Kooragang, I find that there is an unbroken causal chain between the applicant’s left ankle being injured on 13 July 2017 and his pre-existing osteoarthritic left knee condition being aggravated and accelerated in the years thereafter, due to limping, instability, altered gait, and undue coronal imbalance to the knee. I accept the applicant’s submission (see paragraph 71 above) that there is more than sufficient evidence of symptoms and restrictions in the left knee resulting from the left ankle injury, to establish a consequential condition in that knee, in accordance with Moon.
It remains for me to consider whether the applicant’s consequential left knee condition that I have found materially contributes to his current need for a left total knee replacement, treatment that the respondent has conceded is reasonably necessary.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
The respondent’s submission (see paragraph 82 above) is that it does not follow that an increase in the applicant’s left knee symptoms has led to his need for a left total knee replacement, considering his underlying left knee osteoarthritic pathology. Whether that underlying pathology would have led to the current need for surgery in any case has not been addressed in the applicant’s medical evidence, nor has whether the need for the surgery is “just due to the symptoms”.

The problem with the respondent’s submission is that in accordance with Murphy, all the applicant needs to establish is that the need for his left total knee replacement has been materially contributed to by the increase in his left knee symptoms that I have found occurred as a result of his accepted left ankle injury on 13 July 2017. The applicant does not need to meet any other causative test and he certainly does not need to establish that the need for the surgery is “just due to the symptoms”. I accept the submission of the applicant at paragraph 71 above in this regard.
I reject the respondent’s submission as I find that I have more than sufficient evidence in the consistent opinions expressed by Drs Fleming, Bray, and (to a lesser extent) Bodel, in order to feel the sense of actual persuasion required by Nguyen and Drca that the applicant has met his onus of proof in establishing that the left knee consequential condition that I have found materially contributes to his need for his left total knee replacement.
According to Dr Neil, a left total knee replacement was not warranted as at 4 March 2013. Between that date and 13 July 2017, the only evidence of left knee complaints of the applicant’s before me are three consultations with Dr Bray (the last one being on
14 March 2014) and a referral for physiotherapy. The applicant says (and I accept) both in his statement evidence and in his reporting to Dr Fleming, that his left knee was a minor irritation and that he was managing well with it until 13 July 2017.
Dr Fleming records the applicant’s left ankle injury as “altering his coronal alignment leading to a precipitous decline in the clinical status of his knee” and the doctor recommends a left total knee replacement, as early as by his 29 October 2018 report.
The doctor repeats that the applicant’s “clinical picture” in his left knee has worsened due to this impairment in coronal alignment, in his 12 September 2022 report. Importantly in that report (see paragraph 30 above), the doctor specifically opines that the time has come for the applicant to undergo a left total knee replacement due to his abnormal gait, the failure of conservative means to relieve his left knee symptoms, and the need to provide the applicant with pain relief, stability, and quality of life.
Finally, in the doctor’s 21 July 2023 report, he again recommends a left total knee replacement to address the applicant’s worsening quadriceps weakness, loss of range of movement, and especially instability.
In my opinion, it is apparent from Dr Fleming’s reports that he believes that the clinical status of the applicant’s left knee (specifically in terms of symptoms of pain, quadriceps weakness, restricted movement, and instability) has become progressively worse since the applicant’s left ankle injury (and indeed since he first consulted with the applicant in 2018), so that a left total knee replacement is warranted. He in my opinion clearly attributes this worsening to the applicant’s limping, gait disturbance, imbalance, and impairment in coronal alignment of the ankle, which occurred following the applicant’s left ankle injury on 13 July 2017.
I therefore reject the respondent’s submission at paragraph 83 above that Dr Fleming’s opinion is unclear.
While Dr Bray does not in his 21 December 2023 report specifically address whether the applicant’s need for a left total knee replacement is materially contributed to by the left knee symptoms that the applicant has experienced as a result of his left ankle injury, the doctor does opine that a total knee replacement is the only surgery likely to correct the applicant’s pain and deformity. Correcting the applicant’s pain is therefore a major reason for the surgery in the doctor’s opinion. In this regard, the doctor notes that the applicant’s left knee was only occasionally painful prior to the abnormal and excessive biomechanical strain imposed upon his left knee following his left ankle injury. However, the doctor notes that after that left ankle injury, the applicant’s left knee is now permanently painful to weight bearing, as well as permanently swollen and tender.
The respondent refers me to the decision of Wood DP in Usher. That decision however was largely based upon the particular factual circumstances requiring consideration in it, the Deputy President advising [at 63]:
“The decision that the Member was required to make was a decision as to causation. That is, a factual decision requiring consideration of the available evidence and the inferences that could be drawn from those facts.”
The Deputy President found [76-77]:
“Ms Usher asserts that because she had been experiencing symptoms since the injury, it could not be said that the injury played no role in the need for surgery. In the face of the accepted medical evidence, that proposition cannot be accepted. Dr Jovanovic was of the firm view that the injury played no role in the presentation of ‘classic’ symptoms of a rotator cuff tear. The onus was on Ms Usher to establish that the injury materially contributed to the need for surgery, which she failed to achieve.
Ms Usher also contends that the Member fell into error by focussing on the pathology that was to be addressed by the surgery. In the context of the surgery being necessary to address the rotator cuff pathology and that Dr Jovanovic described Ms Usher’s symptoms as ‘classic’ symptoms of a rotator cuff tear, it is not at all surprising that the Member focussed her attention on whether those symptoms sought to be addressed by the surgery were referrable to the injury.”
The distinction between what was decided in Usher and what I have determined in this case is that I have accepted evidence (specifically from Drs Fleming and Bray) that the applicant’s accepted left ankle injury played a materially contributing role in the presentation of left knee symptoms requiring a left total knee replacement. I have also rejected evidence to the contrary from Associate Professor Miniter. I have made a factual decision in this regard after considering all the available medical evidence. I have focused my attention on whether the applicant’s left knee symptoms sought to be addressed by a left total knee replacement were referrable to his left ankle injury and the consequential condition in his left knee that I have found resulted from that injury. I have given significant weight to the opinions of Drs Fleming and Bray as the applicant’s treating medical practitioners, as outlined at paragraphs 120-125 above. I am satisfied that those opinions support the proposition that the applicant’s proposed total left knee replacement is necessary to address his left knee symptoms and clinical situation resulting from his left ankle injury on 13 July 2017.
Finally, I need to deal with the respondent’s submission at paragraph 84 above requesting that I draw an inference pursuant to the rule in Jones v Dunkel regarding the applicant’s failure to obtain a further report from Dr Neil. I reject that submission and refuse to draw the inference requested. In my opinion, and in accordance with Payne v Parker [1976] 1 NSWLR 191 (Payne), a further report from Dr Neil is not missing evidence that would have been expected to have been relied upon by the applicant. There is no evidence that the doctor had consulted with the applicant after producing his 4 March 2013 report, which is in evidence. There was no reason for the applicant to seek any further treatment from Dr Neil, as
Dr Fleming had become his treating orthopaedic surgeon. Further, after qualifying Dr Bodel, the applicant was prevented by cl 44 of the Workers Compensation Regulation 2016 from relying upon the opinion of any other qualified forensic medico-legal assessor, such as
Dr Neil.

SUMMARY

I therefore find that the applicant has sustained a consequential injury to his left knee resulting from his accepted 13 July 2017 left ankle injury, and that the surgery proposed for the applicant by Dr Fleming (a left total knee replacement) as referred to in his 1 April 2022 report, is reasonably necessary medical treatment and results from and is materially contributed to by the applicant’s 13 July 2017 left ankle injury.
There will be an award in favour of the applicant that the respondent is to pay for the costs of and incidental to the said surgery, pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 492

5 September 2024