Ganbaatar v MGL Steel Fix Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ganbaatar v MGL Steel Fix Pty Ltd [2021] NSWPIC 275
APPLICANT:	Gansukh Ganbaatar
RESPONDENT:	MGL Steel Fix Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	4 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for aggravation of disease process of right hip avascular necrosis and consequential left hip aggravation of avascular necrosis for weekly compensation and for section 60 expenses including bilateral total hip replacements; section 4(b)(ii) aggravation of disease; main contributing factor and AV v AW considered; material contribution of subject injury to the need for surgery to the left hip; Murphy v Allity Management Services P/L considered; Held- applicant sustained section 4(b)(ii) aggravation of disease of the right hip and consequential left hip condition; award for the applicant for weekly compensation and for payment of bilateral hip replacements and general section 60 order otherwise.
DETERMINATIONS MADE:	1. The Commission finds that the applicant suffered an injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987, being aggravation of avascular necrosis in the right hip, in the course of his employment with the respondent on 26 June 2018. 2. The Commission finds that the applicant suffered a left hip condition consequential to the injury on 26 June 2018. 3. The bilateral total hip replacement surgery performed by Dr Walker on 23 July 2020 (the surgery) was reasonably necessary as a result of the injury on 26 June 2018. 4. Respondent to pay the applicant weekly payments of compensation pursuant to section 37(1) of the Workers Compensation Act 1987: a. from 3 June 2020 to 19 December 2020 at the rate of $912 per week, and b. from 20 December 2020 to 30 December 2020 at the rate of $702 per week. 5. Respondent to pay the costs of and incidental to the surgery in accordance with section 60 of the Workers Compensation Act 1987. 6. Otherwise, general order that the respondent pay the applicant’s medical, hospital and related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute, Mr Gansukh Ganbaatar (the applicant) claims weekly compensation and medical and related treatment expenses pursuant to sections 37 and 60 of the Workers Compensation Act 1987 (the 1987 Act) respectively, including the cost of bilateral total hip replacement surgery on 23 July 2020, as a result of injury on 26 June 2018 in the course of his employment with MGL Steel Fix Pty Ltd (the respondent). Mr Ganbaatar claimed that the injury on 26 June 2018 was to his right hip by way of aggravation of a
pre-existing disease condition, avascular necrosis, and a consequential condition of the left hip.
The section 78 notice dated 26 February 2020 disputed the request for bilateral total hip replacement surgery on the basis that the insurer did not believe that the claimed medical expenses were reasonably necessary as a result of the injury on 26 June 2018, for which liability had previously been accepted for the right hip femoral hip avascular necrosis condition.
The section 78 notice dated 8 April 2020 disputed capacity for work and entitlement to weekly payments for right hip injury/femoral hip avascular necrosis of 26 June 2018. Also disputed in that notice was entitlement to medical or related treatment on the basis that such treatment was not reasonably necessary as a result of an injury.
An internal review notice dated 22 December 2020 pursuant to section 287A of the Workplace Injury Management and Workers Compensation Act 1998 maintained the dispute notice dated 8 April 2020.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 13 May 2021 and on 28 June 2021,
Mr Ganbaatar was represented by Mr Young of counsel, instructed by Ms Semaan, solicitor and the respondent was represented by Mr P Perry of counsel, instructed by Mr Thorne, solicitor. In attendance on both dates was an interpreter in the Mongolian language.
At the hearing of this matter on 13 May 2021, the respondent sought leave to dispute injury on 26 June 2018, a dispute which had previously not been notified in a section 78 notice. I declined that application in an ex tempore decision, with oral reasons recorded. At the conciliation/arbitration hearing on 28 June 2021 the matter proceeded to an arbitration hearing.
Mr Ganbaatar amended the Application to Resolve a Dispute (ARD) at the conciliation/arbitration hearing on 28 June 2021 to close the period of the claim for weekly compensation on 30 December 2020. The weekly compensation claim was amended to claim for the period from 3 June 2020 to 30 December 2020.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) the ARD and attached documents, and
(b) Reply and attached documents.

Oral Evidence

There was no application to give oral evidence and there was no application to cross examine Mr Ganbaatar.

Mr Ganbaatar’s statement

Mr Ganbaatar provided a statement dated 22 February 2021.
Mr Ganbaatar was born in Mongolia in 1986 and completed his Masters in Business Management in Mongolia in 2011. He lived in Mongolia until February 2017 when he emigrated to Australia.
Mr Ganbaatar said that he commenced employment with the respondent in about April 2018 as a steel fixer/team leader on a full-time basis. Prior to that he worked as a steel fixer for another company from February 2017 to 2018. Prior to that he worked as a self-employed truck driver in Mongolia from 2011 to 2016.
Mr Ganbaatar stated that prior to the subject injury he was able to handle the physical demands of his job. He stated that he did not recall ever experiencing any pain or restrictions in his hips or his right knee prior to commencing employment with the respondent.
Mr Ganbaatar stated that on 26 June 2018 in the course of his duties he sustained injury relevantly to his right knee. He stated that he was walking with long steel rods held on his shoulder on the second floor of a building when he tripped and fell down a hole onto the first floor of the building. He stated that he landed heavily on the ground on his right side.
Mr Ganbaatar stated that he informed his supervisor of the injury on the same day.
Mr Ganbaatar said that he was required to continue working as his supervisor did not think that the injury was serious at that time. Mr Ganbaatar said that he went into work the next day and continued working with the respondent, hoping that the pain would eventually go away. He stated that he continued to work with the respondent for the next three months despite the continuing pain. Mr Ganbaatar stated that his right hip pain continued to worsen to the point where he could no longer work. Mr Ganbaatar stated that in that period of three months that he continued to work he was limping because of the significant pain in his right hip and he would lean more towards his left side to avoid further pain in his right side.
Mr Ganbaatar stated that in about September 2018 one of his managers told him that he should seek medical help and stop working. Mr Ganbaatar said he stopped working and sought medical help.
Mr Ganbaatar said that on 15 September 2018 he consulted Dr Szomor, orthopaedic surgeon. Mr Ganbaatar stated that he told Dr Szomor that for the past three months or so he had noticed a difference in his gait as well as worsening pain in his right groin and thigh.
Dr Szomor referred Mr Ganbaatar for an x-ray of his right hip and prescribed medication.
Mr Ganbaatar said that on 17 September 2018 he had an x-ray of both his hips and pelvis.
Mr Ganbaatar stated that he consulted Dr Szomor again on 6 November 2018. He stated that he told Dr Szomor there had been no improvement in his right hip pain or restrictions and he was continuing to work with right hip pain and while limping since his injury.
Mr Ganbaatar said that Dr Szomor referred him for an MRI of his right hip. He stated that
Dr Szomor suggested that Mr Ganbaatar use crutches or a walking stick to take the load off his right hip.
Mr Ganbaatar stated that on 12 November 2018 he underwent a bone scan. Mr Ganbaatar stated that his lawyer informed him that the bone scan report of 12 November 2018 has a reference to Mr Ganbaatar having experienced right hip pain for the past three years prior to November 2018. Mr Ganbaatar stated that he did not know why the bone scan report contained that comment as he did not recall informing Dr Butler, who did the bone scan, that he had been experiencing right hip pain for the past three years. Mr Ganbaatar stated that at that time his English was very limited and he believed that the doctor may have misunderstood what Mr Ganbaatar said. Mr Ganbaatar stated that prior to the injury on 26 June 2018 he was not experiencing any symptoms or pain in his right or left hip.
Mr Ganbaatar stated that he consulted Dr Szomor again in November 2018 and he continued with using crutches and taking medication. He stated that he commenced physiotherapy in January 2019.
Mr Ganbaatar stated he started to have symptoms in his left hip in April 2019. He stated that he believed that this was because he started to rely heavily on his left hip to compensate for his right hip pain.
Mr Ganbaatar stated that he consulted again with Dr Szomor on 27 May 2019. Mr Ganbaatar stated that he informed Dr Szomor of some improvement of his right hip symptoms but he was now having pain in his left hip because of overreliance. He said that he had been off work for some time now and wanted to go back to work and Dr Szomor issued a medical certificate certifying him fit for restricted duties. Mr Ganbaatar stated that Dr Szomor informed him that eventually he would need a total hip replacement when he could not tolerate the pain and stiffness.
Mr Ganbaatar stated that when he consulted Dr Szomor again on 29 July 2019 he discussed that he had returned to work for two weeks and his hips had become very painful and were disturbing his sleep. Mr Ganbaatar stated that Dr Szomor discussed bilateral hip replacement surgery with him. Mr Ganbaatar said that he decided to proceed with surgery and Dr Szomor organised for the surgery to be done at St George Private Hospital following approval from the insurer.
However, Mr Ganbaatar stated that due to financial reasons he changed treating specialist to Dr Peter Walker, orthopaedic surgeon. Mr Ganbaatar said that on 7 July 2020 Dr Walker recommended bilateral total hip replacement surgery. Mr Ganbaatar said that he was “in so much pain and wanted the pain to end”. He said that he could barely walk and when he did he walked with a limp. He stated that he had tried everything recommended by his treating doctors including physiotherapy, taking medication and resting but none of these treatments assisted.
Mr Ganbaatar stated that on 23 July 2020 he underwent bilateral total hip replacement surgery performed by Dr Walker. He said that he found the bilateral total hip replacement to be beneficial in relieving his pain as prior to the surgery he was unable to stand up for a long period of time in the same position and he had trouble walking and he struggled to lift objects and he did not sleep well due to the pain. He said that following the surgery he was able to do these simple things.
Mr Ganbaatar stated that following the surgery he was advised by his doctors not to lift more than 10 kg and not to drive any trucks and not to work for long hours. Mr Ganbaatar said that his doctors advised him that he should do only very light duties work and not to work in any construction or labouring roles.
Mr Ganbaatar said that on or about 20 December 2020 he started cleaning houses to support his family. He said he would accept these jobs on Air Tasker at a rate of $30 per hour. He worked two hours on Mondays for $60 and three hours on Fridays for $90. He said that from 16 February 2021 he was also working on Tuesdays for 2.5 hours for $75.
Mr Ganbaatar stated that he had difficulty finding a role other than cleaning that he is able to complete as his skills and knowledge are predominantly related to construction and labouring. He stated that he still has constant pain in both his hips.

Dr Szomor

There are three reports of Dr Szomor, orthopaedic surgeon dated 14 November 2018, 27 May 2019 and 29 July 2019. Dr Szomor listed his specialisation as knee arthroscopy and reconstruction and hip and knee arthroplasty. He is also a conjoint senior lecturer at UNSW.
In his report of 14 November 2018 to Dr Mahbub of the Ashton Medical Practice, Dr Szomor noted an initial presentation on 15 September 2018 in respect of the right hip. Dr Szomor noted with respect to “Onset” that “for about the last three months has noticed a difference in gait with pain in the right groin and thigh. No initiating event.” He noted in respect of current symptoms that there was pain in the right groin and thigh which was worse with activities and there was difficulty working on a construction site. Dr Szomor noted findings on examination of the right hip and x-rays of the right hip including “antalgic and stiff hip gait on right”.
Dr Szomor noted a provisional diagnosis of right hip avascular necrosis. Dr Szomor with respect to “General Health” noted “TB. History incomplete.” And with respect to “Medications” he noted “medication for TB. Also incomplete.”
In the same report, Dr Szomor recorded a review on 6 November 2018 and there was no change in the right hip and knee pain. Dr Szomor also noted a history of “an accident at work on 26.06.18 while pushing heavy steel and fell into a hole twisting his right hip. His pain and limping have continued since the accident… He had no symptoms prior to the accident.”
Dr Szomor also noted that Mr Ganbaatar “has NESB and has limited understanding of English with his wife helping translating, who also has limited English. No interpreter available.”
Dr Szomor noted that it was his impression that:
“right hip symptoms related to intra-articular pathology, i.e.: chondroplasty or avascular necrosis of the femoral head, likely caused by mechanical injury (at work on 26.06.18?) or aggravated by injury of a pre-existing, asymptomatic condition caused by long-term medication for chest TB”.

Dr Szomor was of the opinion that Mr Ganbaatar should continue on light duties with limited standing and walking, no lifting or squatting or stairclimbing and predominantly sedentary work”. He recommended use of “an offloading walking aid, either crutches or a walking stick”.
Also in the same report, Dr Szomor recorded on review on 14 November 2018 that
Mr Ganbaatar’s right hip pain and stiffness continued. He also noted continuing medication and “he is offloading his hip using a walking stick”. He noted findings on examination of the right hip including antalgic gait. He noted that a bone scan of 13 November 2018 confirmed right femoral head avascular necrosis. He recommended continuation on reduced weight-bearing, ideally with crutches and a continuation of medication, as well as referral for an MRI.
In his report of 27 May 2019 to Dr Mahbub, Dr Szomor noted that on review on 27 May 2019 Mr Ganbaatar reported that his right hip symptoms had improved and he was able to walk unaided and still reports some pain in the right hip at night and with walking and persistent stiffness. Dr Szomor also noted that Mr Ganbaatar had also experienced left sided pain for a few months. He noted that Mr Ganbaatar had been off work and was asking if he could return to work. On examination of the right hip, Dr Szomor recorded findings which included right sided Trendelenburg gait. He noted with respect to x-rays of both hips that both femoral heads avascular necrosis had progressed to grade 3 with articular surface collapse.
Dr Szomor noted that Mr Ganbaatar was “keen to return to some degree of work and if his pain is tolerable he can do so on restricted duties (no lifting over 10 kg, no repetitive lifting, carrying, pushing or stairclimbing and no squatting or kneeling)”. Dr Szomor was also of the opinion that “as both femoral heads have collapsed causing hip incongruence, his symptoms are likely to progress and a total hip replacement will likely be needed when his pain and stiffness become intolerable”.
In his report to Dr Mahbub dated 29 July 2019, Dr Szomor noted that on review on 29 July 2019 Mr Ganbaatar reported that “after extensive work for two weeks his hips have become very painful and disturbed his sleep”. He noted that Mr Ganbaatar has strong pain in both hips and difficulty walking. Dr Szomor noted findings on examination of both hips that included Trendelenburg sign positive and quadriceps wasting. Dr Szomor was of the opinion that “considering Mr Ganbaatar’s ongoing and progressive condition inhibiting and from work and interfering with his day-to-day living, I have discussed with him the role of a bilateral total hip replacements. He… would like to proceed with surgery.” Dr Szomor noted that this would be organised at the St George Private Hospital following workers compensation approval.

Dr Walker

There are four reports of Dr Walker, hip and knee orthopaedic surgeon, dated 7 July 2020, 23 July 2020, 4 September 2020 and 27 November 2020.
In his report of 7 July 2020 to Dr Le, Dr Walker noted the assistance of an interpreter.
Dr Walker recorded that Mr Ganbaatar had “2 years of pain.” He also noted that
Mr Ganbaatar “injured this at work initially… He has similar symptoms on both sides, with pain in the groin. He struggles to walk. He is currently not working at all. He has constant limp… I believe he has no predisposing factors”.
Dr Walker noted on examination that Mr Ganbaatar walked with bilateral antalgic gait. He noted that both hips were very irritable with no internal rotation in flexion. Dr Walker noted that the x-ray showed bilateral femoral head collapse, secondary to avascular necrosis.
Dr Walker recommended a bilateral hip replacement.
In his operation report of 23 July 2020, Dr Walker described the operative procedure of bilateral total hip replacement. He noted that the operative findings were osteoarthritis of the hip.
Dr Walker’s report of 4 September 2020 was a brief review report following surgery. He noted that Mr Ganbaatar was doing well with his bilateral hip replacements and he was walking “pretty much unaided at the moment”.
In his report dated 27 November 2020 to Mr Ganbaatar’s solicitors, Dr Walker noted that:
“The history given to me is that he had a significant work-related injury in June of 2008 [sic] where he injured his hip. Initially he had a strong compression injury to his hip with quite a lot of force behind it and then he fell down. He never had any pain in the hip prior to this and ever since then he did continue to have hip pain. He continued to work with his hip pain for 3 months until he stopped because he literally could not anymore.”
Dr Walker continued:
“As I said he had no pain prior to this and he has had no predisposing factors to avascular necrosis. He had an x-ray in September which did show some changes to his femoral head consistent with early avascular necrosis. He also had a bone scan done in November which confirmed this. The hip went on to collapse. He started to get symptoms in the left hip in April and had an x-ray in May which also showed avascular necrosis.”

Dr Walker noted that Mr Ganbaatar had no pain prior to the injury and he had no predisposing factors to avascular necrosis. He also noted that Mr Ganbaatar had an x-ray in September which showed some changes to the femoral head consistent with earlier vascular necrosis and the bone scan that was done in November confirmed this. Dr Walker noted that the hip went on to collapse and Mr Ganbaatar started to get symptoms in the left hip in April and an x-ray in May which also showed avascular necrosis.
Dr Walker was of the opinion that:
“It is always very difficult to say with certainty whether or not the injury is the cause of this or if he had idiopathic osteonecrosis but on the balance of things it is not unreasonable to say that this is work related, purely because he had no symptoms before, he had quite a significant injury and then soon afterwards revealed avascular necrosis.”
Dr Walker opined that:
“it is not possible to say that he would have got this anyway without this injury because as I say he has no medical factors to result in avascular necrosis that anyone has been able to determine. I think that if someone says that he has an underlying problem, they should probably say what the underlying problem is.”
In respect of capacity to work, Dr Walker noted that since the injury Mr Ganbaatar suffered with pain and continued to work until he stopped about three months after the injury. Dr Walker also believe that the incapacity to work is a result of the injury. He was of the opinion that Mr Ganbaatar had done well with his hip replacements and was able to work but he did not think heavy physical job would be best for him in the future.
Dr Walker believed that Mr Ganbaatar’s employment materially contributed to the need for the hip replacements and that the hip replacements were the only option because of the collapse of Mr Ganbaatar’s femoral head.

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided a medicolegal report dated 2 November 2020 to
Mr Ganbaatar’s solicitors. Dr Bodel examined Mr Ganbaatar on 2 November 2020 with an interpreter.
Dr Bodel diagnosed avascular necrosis in both hips.
Dr Bodel recorded a history that Mr Ganbaatar suffered an injury at work in June 2018.
Dr Bodel noted that Mr Ganbaatar was adamant that the injury occurred on a Friday but the injury date given was a Tuesday and Mr Ganbaatar could not recall the correct date in that circumstance.
Dr Bodel noted that Mr Ganbaatar was carrying some steel on a deck at the top of a building which was under construction and he walked to an area where there was “a rectangular shaped penetration” for a column that would support the deck to the floor below. Dr Bodel recorded that Mr Ganbaatar stated that he landed, fell forward and landed on his right hand side on the edge of the penetration and he did not fall through to the ground below. Dr Bodel noted that Mr Ganbaatar continued to work the rest of the shift and continued to work after that with pain. Dr Bodel noted that Mr Ganbaatar put up with the hit pain until about the middle of September when it became unbearable.
Dr Bodel noted plain x-rays of the lumbar spine and hips on 17 September 2018 about three months after the injury. Dr Bodel noted that “this clearly shows evidence of advanced osteonecrosis of the head of the right femur and it reports also pathology in the left hip as well. On my viewing of these original films, the left hip appears intact”. Dr Bodel noted that at the time of those first films “there was quite severe well advanced avascular necrosis in the right hip only”.
Dr Bodel was of the opinion that:
“it is difficult to be absolutely certain of the age of the avascular necrosis and collapse of the head of the femur in that circumstance but it does suggest that the three-month timeline between the injury and the films is acceptable for the degree of pathology seen at that time.”

Dr Bodel noted that Mr Ganbaatar continued to work until about November 2018. He also noted that “the right hip steadily deteriorated over time and progress x-rays showed that the head of the femur was collapsing even further. In that period of time the left hip also showed that it had avascular necrosis and was steadily collapsing as well.”
Dr Bodel noted the treatment by Dr Szomor and also the change in the history recorded by Dr Szomor. Dr Bodel noted that “Dr Szomor was happy to accept a causal link between the episode of injury at work and the development of the AVN in the right hip at that time”.
Dr Bodel noted that Mr Ganbaatar subsequently sought a second opinion from Dr Walker, who “confirmed the presence of avascular necrosis now in both hips, and that there was a causal link back to the fall at work”.
Dr Bodel noted that bilateral total hip replacements were done by Dr Walker on 23 July 2020. Dr Bodel noted that Mr Ganbaatar worked on and off until September 2018 and had not worked elsewhere since that time, other than a trial return to work doing truck driving work which lasted only about 14 days. Dr Bodel noted that Mr Ganbaatar had not worked elsewhere since and he was not actively seeking employment as he was still recovering from the hip replacements.
With respect to past medical history, Dr Bodel noted that “there is a suggestion that this gentleman may have developed tuberculosis”. Dr Bodel noted that he came to Australia in February 2017 and apparently had a chest x-ray on arrival. He noted that this was said to be consistent with the diagnosis of tuberculosis but Mr Ganbaatar had been unaware that he had contracted that condition. Dr Bodel recorded that Mr Ganbaatar had been put on antibiotics for a long period of time. He noted that “it appears from the history that he gives that no formal pathological diagnosis was confirmed in regard to the TB, but he was on medication for a lengthy period of time”.
Dr Bodel also noted that “he has had no prior problems with the hips and he has no other precursors to the development of avascular necrosis such as immunosuppressive medication or alcohol”. Dr Bodel also noted that he did not have the expertise to comment in respect of medications “that he may have been taking for ‘tuberculosis’ and the association with the development of avascular necrosis”. Dr Bodel noted the bilateral hip pathology yet only the right side was injured at the time of the accident.
Dr Bodel also noted that Mr Ganbaatar developed a gradual onset of left hip pain.
Dr Bodel provided his findings on examination and also noted x-ray investigations in relation to both hips.
Dr Bodel also noted the opinion of Dr Harrington, which formed the basis of the denial of liability by the insurer. Dr Bodel noted the view of Dr Harrington that the injury did not cause the AVN in the region of the right hip and that any soft tissue aggravation caused by the fall has now resolved. Dr Bodel also noted that Dr Harrington did concede that the fall rendered the hip joint symptomatic.
In relation to causation, Dr Bodel was of the opinion that:
“This causation issue is a very difficult issue. The bilateral disease strongly suggests that this is a constitutional ailment. He was asymptomatic and had been so for a month while at this workplace and it appears that the fall has either instigated pain in the abnormal hips, which had been previously asymptomatic, or more likely in my view, triggered the microfracture in the subchondral region in the head of the femur on the right hand side which has led to the collapse confirmed three months later on the plain x-rays. Clearly he was vulnerable to the avascular necrosis and there may be other causes, although I have not been able to identify those on history taking here today. The things to be looked for would be a compromised immune status, which does not appear to be the case, such as in people on immunosuppressive drugs for kidney disease or some other disease process. The trauma involved does not appear to have been significant enough to trigger avascular necrosis, particularly in both hips, although it may have aggravated the pathology in the region of the right hip.”

Dr Bodel was of the opinion that on balance the injury was a substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process.
Dr Bodel was of the opinion that:
“Based on the timing of the first set of films, three months after the injury, I am satisfied that the fall that did occur at work has triggered off the cascade of events that led to avascular necrosis on the right hand side followed by the avascular necrosis on the left hand side. He must have an underlying constitutional predisposition to this and that is at this stage unidentified.”
Dr Bodel was also of the opinion that the injury at work is a substantial contributing factor to the development of the avascular necrosis in both hips.
Dr Bodel responded to a request for comment from Mr Ganbaatar’s solicitors regarding the opinion of Dr Harrington. Dr Bodel opined that the causation issue had been satisfied and he was of the opinion that the fall had led to the avascular necrosis in the right hip. He was also of the opinion that “the left hip has come on as a consequential injury over time, favouring that left-sided to protect the injured right side.” Dr Bodel recommended investigation to identify the underlying causal agent but was satisfied that the work injury “is an aggravating, accelerating, exacerbating and deteriorating factor to the underlying disease process”.
In relation to capacity for work, Dr Bodel was of the opinion that Mr Ganbaatar had no current capacity for work. Dr Bodel noted that Mr Ganbaatar was recovering from total hip replacements and that “hopefully within the next 2 to 4 months he will be able to contemplate a graded reintroduction to work on light duty activities.” Dr Bodel was of the opinion that it would be inappropriate for Mr Ganbaatar to return to work as a steel fixer. He was also of the opinion that the incapacity has arisen as a consequence of the injury.
Dr Bodel was also of the opinion that the bilateral total hip replacements were needed and were reasonably necessary for the management of the avascular necrosis in the hips.

Dr Harrington

Dr Harrington, orthopaedic surgeon, provided a medicolegal report dated 13 January 2020, and a supplementary report dated 3 February 2020, to the workers compensation insurer.
Dr Harrington noted the assistance of an interpreter.
In his report dated 13 January 2020, Dr Harrington noted a history that Mr Ganbaatar was carrying a heavy object on his right shoulder when he stepped into a hole, jarring the right hip. Dr Harrington noted that Mr Ganbaatar put up with the pain but it did not settle down and gradually got worse and by September he could hardly walk and he has not worked since.
Dr Harrington noted that Mr Ganbaatar denied any trouble with his right hip in the past.
Dr Harrington also recorded that in or about May 2019 Mr Ganbaatar reported similar symptoms in the left hip, but nothing like the acute pain in the right hip at work.
Dr Harrington noted the radiological investigations. He noted the progression of AVN, mainly on the left side and collapse of the head. Dr Harrington observed that these are irreversible changes and that the latest x-rays show similar changes on the right side.
Dr Harrington noted that there are no apparent predisposing factors for AVN. He noted that Mr Ganbaatar at that time was only 33 years old and this was a “very rapid, almost malignant AVN”.
Dr Harrington stated that he tended to agree that bilateral total hip replacements were the only appropriate treatment.
Dr Harrington diagnosed idiopathic AVN (avascular necrosis). Dr Harrington did not believe that employment was “the substantial contributing factor”. It was his opinion that this was an underlying condition “that was going to become a significant problem irrespective of the work injury described”.
Dr Harrington was also of the opinion that:
“If he had a soft tissue injury to his hip, which made it symptomatic, that was because it was always going to become symptomatic. This is not cause and effect i.e. the injury at work has not caused the condition. Unfortunately we don't know an exact cause for AVN but it is very unusual for a 33 year old to get AVN at this rapid rate and become debilitating within such a short period. It is not unheard of, but is certainly unusual…The sudden symptomatology tends to suggest some sort of systemic problem.”

In response to a question as to whether Mr Ganbaatar’s condition is an aggravation/exacerbation of a pre-existing or degenerative condition, Dr Harrington was of the opinion that “given the pathology, I do not believe jarring himself when he stepped in a hole at work is causally related to the current condition.”

FINDINGS AND REASONS

The section 78 notices did not dispute that an event took place on 26 June 2018 in which
Mr Ganbaatar sustained injury to his right hip.
The respondent submitted that Mr Ganbaatar’s case is all about the symptoms that he was experiencing when he was under the care of Dr Walker which led Dr Walker to conduct the hip replacement surgery. The respondent submitted that Mr Ganbaatar had failed to establish that the hip replacement surgery was the legacy of the event on which he relied, that is he had not established a causal link between the event on 26 June 2018 and the need for that surgery. The respondent submitted that Mr Ganbaatar had not established that his condition after the injury in any part of the period for which he claims, including the need for the surgery for both hips, was in fact the legacy of the event on which he relied.
The respondent submitted that the history recorded by Dr Harrington showed that
Mr Ganbaatar initially experienced left hip symptoms in May 2019, about one month before the onset of the right hip symptoms. This, it was submitted, was relevant to a history of
Mr Ganbaatar’s change in gait and the question of the consequential condition.
In my view, the history of injury on 26 June 2019 that was recorded by Dr Harrington in his report of 13 January 2020 was a typographical error, that is the reference to the year “2019” in my view should have been “2018”. In the subsequent paragraph of that report
Dr Harrington noted a history of onset of symptoms in the left hip in or about May 2019. The onset of left hip symptoms subsequent to those of the right hip is consistent with
Mr Ganbaatar’s case and is also consistent with the sequence of radiological investigations which commenced with investigation of both hips in the x-ray report of 17 September 2018 with the radiologist commenting that the left hip was normal and the right hip was abnormal with avascular necrosis. That radiological investigation sequence continued with the bone scan report of 12 November 2018 which concluded that there was extensive avascular necrosis of the right hip and commented on low-grade uptake in the left femoral head in keeping with arthritis. The x-ray report of both hips on 27 May 2019 in which the scan was found to be apparently consistent with the history of avascular necrosis, which was bilateral.
The report of Dr Szomor of 27 May 2019 noted “left sided pain for a few months”.
Dr Szomor’s earlier reports of consultations referred only to the right hip symptoms. The report of 27 May 2019 also made examination findings of pain with movements of the right hip, but made no reference to pain with movements of the left hip. Dr Szomor noted in his report of 14 November 2018 there was a diagnosis on 25 September 2018 of right femoral head avascular necrosis.
The respondent also sought to rely upon the report of Dr Szomor of 14 November 2018, which recorded on the initial presentation on 15 September 2018 that the onset of the right hip problem had been for about the last three months in which Mr Ganbaatar noticed a difference in gait and no initiating event. However, I note that Dr Szomor did not note the presence of an interpreter, or at least assistance with interpreting, in the consultation on 15 September 2018, whereas in his progress note of 6 November 2018 Dr Szomor noted that Mr Ganbaatar had limited understanding of English and he was assisted by his wife who also had limited English, there being no interpreter available. In my view, the history recorded by Dr Szomor in the consultation of 6 November 2018 is more reliable and to be preferred for the reasons that he noted in that consultation.
In my view, the brief clinical history that was recorded in the bone scan report of Dr Butler of 12 November 2018 should also be regarded with caution. The brief clinical note made no mention of the assistance of an interpreter and indeed that note was made after the consultation note of 6 November 2018 of Dr Szomor. Mr Ganbaatar in his statement disputed the history recorded by Dr Butler. I accept the evidence of Mr Ganbaatar in this regard.
I am not persuaded that the evidence of Mr Ganbaatar that the onset of his right hip symptoms commenced with the injury at work on 26 June 2018 should not be accepted.
Mr Ganbaatar stated that prior to the injury of 26 June 2018 he had not experienced any symptoms or pain in his right or left hip. The respondent submitted that it was the earlier gait problems, that were followed by right hip symptoms from about 15 June 2018. The respondent relied upon the history recorded by Dr Harrington which seemed to indicate that the left hip symptoms took place about one month prior to the right hip symptoms. This, it was argued, when considered with the initial consultation history of Dr Szomor of a difference in gait for a period of about three months prior to 15 September 2018, showed that
Mr Ganbaatar had not established a causal link between the injury of 26 June 2018 and the right hip pathology and symptoms for which he was to ultimately undergo the surgery that was performed by Dr Walker.
I do not accept this submission. As noted above, in my view the reference by Dr Harrington in his report to a date of injury of 26 June 2019 was a typographical error. It follows then, in my view, that Dr Harrington did not record a history of left hip symptoms commencing prior to the onset of the right hip symptoms. He recorded a history of the onset of left hip symptoms in about May 2019, that is after the incident of 26 June 2018. The onset of left hip symptoms after the injury to the right hip on 26 June 2018 as a result of altered gait is also supported by the reports of Dr Szomor which include notation as to the use of an offloading walking aid in the consultation of 6 November 2018 and a walking stick on 14 November 2018. The change in gait noted by Dr Szomor in his report of 14 November 2018 in my view relate to the right hip pain and limping that had continued since the accident of 26 June 2018. Dr Szomor in his report of 27 May 2019, in reporting on the right hip, also noted left sided pain for a few months. I accept the statement of Mr Ganbaatar that due to the significant pain in the right hip he was limping and would lean more towards his left side to avoid further pain in the right side and that by 27 May 2019 he had been experiencing pain in his left hip as a result of overreliance.
I prefer the report of Dr Bodel to that of Dr Harrington. In my view, Dr Bodel engaged with the issue of causation and applied a more cogent analysis of that issue. Dr Bodel, provided reasons summarised above, and was of the opinion that the injury of 26 June 2018 was an aggravation of the underlying disease process and that such aggravation was continuing. This opinion addresses the correct test.
On the other hand, Dr Harrington in his report of 13 January 2020 was of the opinion that the injury at work had not caused the condition of avascular necrosis. That opinion does not address the correct test. Even if it could be said to be implied that Dr Harrington did not agree with the proposition that the work injury aggravated the current underlying condition, in my view he did not explain that implication, particularly having regard to his earlier comments in his report that the exact cause for AVN is unknown but it is very unusual for a young man to get AVN at such a rapid rate in such a short period.

Dr Harrington in his supplementary report of 3 February 2020 had also conceded that the incident at work may have precipitated the onset of right hip symptoms, but he did not explain how or why such work-related aggravation had ceased. The reports of Dr Szomor and Dr Walker in my view show that there was a continuity of symptoms in the right hip following the injury of 26 June 2018 until the surgery on 23 July 2020. I do not accept the opinion of Dr Harrington in this regard.
Dr Walker in his report of 27 November 2020 also was of the view that the work-related injury was the cause of Mr Ganbaatar’s condition. He was of the view that it was work-related because there were no prior symptoms, there was a significant injury and soon afterwards the avascular necrosis was revealed. Although Dr Walker did not explicitly refer to the right hip, he did in his report refer to subsequent symptoms in the left hip in April and an x-ray in May which also showed avascular necrosis. Additionally, Dr Walker referred to the injury being in “June 2008”, which in my view is a typographical error and should have been a reference to 2018. I infer that Dr Walker’s opinion was that the right hip condition was causally related to the injury of 26 June 2018. Dr Walker disagreed with the proposition that Mr Ganbaatar would have got this condition anyway as in his view Mr Ganbaatar had no medical factors to result in avascular necrosis that anyone had been able to determine.
Dr Walker did not address the issue of whether the injury was causally related by way of aggravation of an underlying condition of avascular necrosis. However, in my view,
Dr Walker did provide support for a causal relationship between the work-related injury and the right hip avascular necrosis condition which he treated. To that extent, the opinion of
Dr Walker provides support for the acceptance of the opinion of Dr Bodel.
The opinion of Dr Walker is also support for the proposition that there were no competing causal factors of the aggravation. Dr Walker noted that Mr Ganbaatar had no pain prior to the injury and he had no predisposing factors to avascular necrosis. Dr Walker was of the opinion that there were no medical factors resulting in avascular necrosis that anyone has been able to determine. Dr Bodel considered that there may have been other causes but he was not able to identify them in the history recorded. Dr Bodel was of the opinion that there must have been underlying constitutional predisposition but at that time it was unidentified. Dr Bodel was of the opinion that the injury of 26 June 2018 is a substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of a disease process.
Dr Harrington did not identify other competing causal factors in respect of the question of aggravation of an underlying disease process, although he identified the disease process itself as idiopathic avascular necrosis. I do not prefer the opinion of Dr Harrington on this point as he did not identify other competing nonemployment causal factors to the aggravation of the disease process. Having regard to the opinions of Dr Walker and Dr Bodel, I find that there were no other competing nonemployment causal factors to the aggravation of the disease process of avascular necrosis of the right hip. In my view, the notes of Dr Szomor in relation to “medication for TB” were qualified by Dr Szomor as being incomplete and do not amount to acceptable or persuasive evidence of a nonemployment causative factor.
The test contained within section 4(b)(ii), that is “the main contributing factor”, requires “consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”[1] This is an evaluative process in which the Commission determines the issue of injury, having regard to the whole of the evidence, and whether employment is the main contributing factor to the injury.[2]
[1] AV v AW [2020] NSWWCCPD 9, (AV v AW) at 77
[2] AV v AW at 71, agreeing with State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71
There was no dispute that Mr Ganbaatar was suffering from an underlying disease process of avascular necrosis of the right hip.
I find that as a result of the injury on 26 June 2018 Mr Ganbaatar sustained aggravation, acceleration, exacerbation and deterioration of avascular necrosis of the right hip and that such aggravation, acceleration, exacerbation and deterioration has not ceased. I accept the opinion of Dr Bodel in this regard, which is also in general supported by the opinion of
Dr Walker.
As noted above, I find that there were no other competing nonemployment causal factors to the aggravation of the disease process of avascular necrosis of the right hip. I accept the opinion of Dr Walker in this regard. This finding is also supported by the opinion of Dr Bodel. I find that the injury of 26 June 2018 was the main contributing factor to the aggravation of the disease process of avascular necrosis of the right hip and that the said injury has not ceased to continue to be the main contributing factor to the aggravation of the avascular necrosis of the right hip.
I find that, pursuant to section 4(b)(ii), Mr Ganbaatar sustained aggravation of a disease, avascular necrosis of the right hip, as a result of injury on 26 June 2018 and that such aggravation has not ceased.
In relation to the left hip, Mr Ganbaatar has claimed consequential condition to the injury pursuant to section 4(b)(ii) to the right hip. It is necessary for Mr Ganbaatar to establish that the symptoms and restrictions in his left hip have resulted from his right hip injury, that is the aggravation of the right hip avascular necrosis.[3] This requires a common sense evaluation of the causal chain and is a question of fact for determination on the basis of evidence including expert evidence[4], within the statutory context of the 1987 Act. The decision in Moon was made in the context of a permanent impairment claim, but the reasoning applied also to a weekly compensation claim with the same causal test, that is the loss “results from” the relevant work injury[5].
[3] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at 45
[4] Moon at 47, discussing Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang) at 463-4
[5] Moon At 46
The respondent submitted that there was a strong case from the reports of Dr Bodel and
Dr Walker that this was a bilateral condition and not a right hip injury that resulted in a left hip condition. In this regard, the respondent submitted that Dr Bodel was of the opinion that the bilateral disease strongly suggested that this was a constitutional ailment, and this aspect of his opinion was not consistent with his later opinion in the same report that the left hip injury had come on as a consequential injury over time.
However, in my view, when the opinion of Dr Bodel is regarded as a whole, Dr Bodel was considering the underlying bilateral disease process in the context of evaluating any contribution by the fall at work on 26 June 2018 to the aggravation of that disease process. He continued with an analysis that the fall either instigated pain in the abnormal hips, which had previously been asymptomatic, “or more likely in my view, triggered the microfracture in the subchondral region in the head of the femur on the right-hand side which has led to the collapse confirmed three months later on the plain x-rays”. This, in my view, is consistent with his later opinion in the same report that the left hip injury had come on as a consequential injury over time. In my view, this opinion is not inconsistent with the existence of an underlying asymptomatic bilateral disease process prior to the injury of 26 June 2018.
The report of Dr Walker dated 7 July 2020 was in my view a treating report noting a history in brief terms for the purpose of treating a significant condition. I consider the history recorded in this report with caution, having regard to the observations of the Court of Appeal in Mason v Demasi [6]. This report, in my view, should be considered in the context of Dr Walker’s longer and more detailed report of 27 November 2020. The report of 7 July 2020 was not unambiguous. It noted that Mr Ganbaatar had consulted Dr Walker for “an opinion regarding his hips” and this in itself was consistent with Mr Ganbaatar’s case that both his hips were painful by the time he consulted Dr Walker. Dr Walker continued in his report of 7 July 2020 that Mr Ganbaatar “has had 2 years of pain” and “he injured this at work”. In my view, this was not a forensic enquiry as to the timeline and circumstances of the onset of left hip pain. The history taken in the report of 7 July 2020 continued with “he has similar symptoms on both sides, with pain in his groin”, which in my view was simply a statement as to
[6] [2009] NSWCA 227 at 2
Mr Ganbaatar’s symptoms as at the time of the consultation on 7 July 2020. I have explained above my view of the report of Dr Walker of 27 November 2020.
I have also not accepted the submission that the report of Dr Harrington provides evidence of a history of left hip pain prior to the injury to the right hip on 26 June 2018. I have also not accepted that the consultation notes recorded by Dr Szomor in his reports were evidence of bilateral gait problems. In my view Dr Szomor’s note of the initial presentation on 15 September 2018 was of the right hip problem with the difference in gait with pain in the right groin and thigh and an examination of the right hip which found antalgic and stiff hip gait on the right with no mention of the left. Dr Szomor’s consultation note of 6 November 2018, in addition to recording the history of the accident at work on 26 June 2018, noted the right hip injury with hip pain and limping since the accident and also noted no symptoms prior to the accident. In my view, the clinical notes of Dr Szomor, as recorded in his reports, establish initial gait problems on the right following the subject injury and these gait problems were not bilateral.
As noted above, Mr Ganbaatar’s evidence was that he did not have any symptoms in his left hip prior to 26 June 2018 and that following the injury of 26 June 2018 he was limping due to his right hip symptoms and the pain was so significant that he would lean more towards his left side to avoid further pain in the right side. It was also his evidence that when he consulted with Dr Szomor on 27 May 2019 he was by then experiencing pain in his left hip as a result of overreliance. I accept the evidence of Mr Ganbaatar in this regard. This evidence, in my view, is supported by the contemporaneous notes of Dr Szomor which took a history of right hip pain, antalgic and stiff hip gait on the right, and the use of walking aids from 6 November 2018, with left side pain being first recorded on 27 May 2019.
Dr Bodel was of the opinion that in favouring the left side to protect the injured right side the left hip had come on as a consequential injury over time. Although brief, in my view the opinion of Dr Bodel is sufficient in this regard, when the severity and extent of the right hip injury, the consistent timeline and the notes of Dr Szomor are considered.
Dr Harrington did not provide an opinion as to the relationship between the left hip condition and the right hip injury. I do not place weight on the opinion of Dr Harrington.
I find that Mr Ganbaatar sustained a left hip condition of left hip pain and restrictions of movement consequential to the injury to the right hip, being the aggravation of the avascular necrosis of the right hip, with onset of the left hip condition from about May 2019 as a result of altered gait, and that the said consequential left hip condition has not ceased. Mr Ganbaatar was asymptomatic in his left hip prior to the injury of 26 June 2018. Following antalgic and stiff hip gait on the right, Mr Ganbaatar over relied on his left side. The contemporaneous notes of Dr Szomor support the initial antalgic and stiff right hip gait, the use of walking aids for the right hip and history of left hip pain reported in May 2019. I prefer the expert opinion of Dr Bodel to that of Dr Harrington in this regard.
In relation to the bilateral total hip replacement surgery that was performed by Dr Walker on 23 July 2020, Dr Harrington did not disagree that such surgery was appropriate, although he did disagree that the surgery resulted from the injury on 26 June 2018.
The respondent acknowledged that if injury, or at least causation, were to be found then, in relation to the consequential left hip condition, the principles identified in Murphy v Allity Management Services Pty Ltd[7] apply. Mr Ganbaatar must only establish, applying the commonsense test of causation[8], that the treatment is reasonably necessary “as a result of” the injury. The causation test is one of material contribution as discussed in Sutherland Shire Council v Baltica General Insurance Co Ltd[9]. It is necessary to establish that the injury of 26 June 2018 materially contributed to the need for the left total hip replacement surgery as performed by Dr Walker.
[7] [2015] NSWWCCPD 49 at [57] – [58]
[8] Kooragang
[9] (1996) 12 NSWCCR 716
Dr Szomor in his report of 29 July 2019 considered that Mr Ganbaatar’s ongoing and progressing condition inhibited him from work and interfered with day-to-day living and noted that bilateral total hip replacements were discussed. In his initial report of 7 July 2020
Dr Walker took a brief history as noted above, with elaboration in his report of 27 November 2020. Dr Walker on 7 July 2020 recommended bilateral hip replacement in the context of an initial injury at work with no predisposing factors. Dr Walker was of the opinion that
Mr Ganbaatar’s employment materially contributed to the need for the hip replacements.
Dr Bodel was of the opinion that there was a consequential injury on the left-hand side because Mr Ganbaatar had been favouring the left side to protect the right side over time. He was of the opinion that bilateral total hip replacements were needed and were reasonably necessary for the management of the avascular necrosis in the hips and that the bilateral total hip replacement surgery was appropriate. I prefer the opinion of Dr Bodel to that of
Dr Harrington, who did not specifically consider the issue of the consequential left hip condition.
I find that the injury of 26 June 2018 materially contributed to the need for the left total hip replacement surgery on 23 July 2020. There was no dispute from the respondent that the surgery was reasonably necessary. In particular, having regard to the issues identified in Diab v NRMA Ltd[10] (Diab), with reference to the authority of Rose v Health Commission (NSW)[11], there was no disagreement that the surgery was appropriate, that it was the best available treatment which in fact was effective, and which was accepted by the medical experts in this matter as being an accepted treatment modality. There was no dispute as to the cost of the treatment.
[10] [2014] NSWWCCPD 72
[11] [1986] NSWCC 2
I find that the right total hip replacement that was performed by Dr Walker in the same surgery on 23 July 2020 was reasonably necessary as a result of the injury of 26 June 2018, being the aggravation of the pre-existing disease condition of avascular necrosis of the right hip. The evidence of Dr Szomor, Dr Walker and Dr Bodel was that this surgery was necessary. Dr Harrington did not disagree that the surgery was appropriate. Dr Walker and Dr Bodel were of the opinion that this surgery resulted from the injury of 26 June 2018 (June 2018 in the case of Dr Walker). As noted above, there was no dispute from the respondent that the surgery was reasonably necessary. The issues outlined with respect to Diab above in relation to the left total hip replacement surgery apply here with respect to the right total hip replacement surgery.
It follows from the reasons provided above that the symptoms noted by Dr Walker in July 2020 were causally related to the injury of 26 June 2018. I do not accept the submission by the respondent in this regard for the reasons outlined above.
In relation to the claim for weekly compensation, I note that the period claimed is from 3 June 2020 to 30 December 2020. I also note that preinjury average weekly earnings were agreed by the parties to be $1140.
In relation to capacity for work, the respondent submitted no capacity for work from 3 June 2020 to 23 October 2020, the latter date being 3 months following surgery.
The respondent submitted that the evidence of Dr Walker was that Mr Ganbaatar had a good result from the surgery and that Mr Ganbaatar is able to work but not in a heavy physical job. The respondent submitted that the evidence of Mr Ganbaatar in his statement was that he commenced work on or about 20 December 2020 cleaning homes due to financial pressure. He stated that he earned $30 per hour working seven hours per week which increased in February 2021 by a further 2.5 hours per week. Mr Ganbaatar stated that he was unable to find other work as his previous skills and background was in construction and labouring. Mr Ganbaatar stated that due to his hip restrictions he felt that he could work no more than the hours described above. The respondent submitted that
Mr Ganbaatar’s capacity for work was 38 hours per week at $30 per hour. The respondent submitted that although Dr Walker’s opinion as to capacity was expressed in his report of 27 November 2020, Mr Ganbaatar probably had a capacity to earn prior to that date, being at a time from 23 October 2020. It was submitted that this was a date that was three months after the surgery, which was a reasonable period to allow for recovery and that in the period prior to 23 October 2020 it was conceded that Mr Ganbaatar had no capacity to work, that is in the period from 3 June 2020 to 23 October 2020.
Mr Ganbaatar in his statement said that he was unable to work in any kind of work until December 2020 when he started to perform the light cleaning work. Mr Ganbaatar stated that he was unable to perform his preinjury employment duties and hours. Mr Ganbaatar also said that he remained severely incapacitated from his preinjury employment duties due to his persistent pain and restriction and the ongoing rehabilitation process required after the surgery.
Dr Bodel was of the opinion that Mr Ganbaatar had no current capacity for work as he was recovering from total hip replacements. Dr Bodel expressed the view that hopefully within the next two to four months Mr Ganbaatar would be able to consider a graded reintroduction to work on light duties and that return to work in preinjury duties was inappropriate. In my view, the opinion of Dr Bodel is persuasive as to the recovery period from significant surgery in the form of bilateral total hip replacements.
In my view, the opinion of Dr Walker as to capacity for work in his report of 27 November 2020 was somewhat optimistic. Dr Walker did not otherwise explain the extent of any restrictions on duties or hours and it is difficult for me to prefer the opinion of Dr Walker in this regard. Dr Harrington did not provide an opinion as to capacity. I do not accept the respondent’s submission that Mr Ganbaatar had capacity for work from 23 October 2020. This in my view was a somewhat arbitrary date following significant bilateral total hip replacement surgery. I also do not accept that Mr Ganbaatar was able to work 38 hours per week in the period following 23 October 2020. In my view, Mr Ganbaatar had no capacity for work and was not able to perform his preinjury duties prior to 20 December 2020. I accept
Mr Ganbaatar’s evidence that he was not able to work until the commencement of light duties cleaning work on 20 December 2020.
I prefer the opinion of Dr Bodel as to capacity for work. In my view, Mr Ganbaatar’s return to work on 20 December 2020 on light duties cleaning work of 7 hours per week was consistent with Dr Bodel’s view that there should be a graded reintroduction to light duties after a further period of no capacity to work of 2 to 4 months.

For the period prior to the surgery on 23 July 2020, as noted above, the respondent conceded no capacity for work. This is an appropriate concession in my view having regard to the balance of the medical evidence available. Dr Walker recorded that Mr Ganbaatar continued to work for 3 months until he literally could not continue, and in his report of 7 July 2020 he also noted Mr Ganbaatar was struggling to walk and had a constant limp.
I find that Mr Ganbaatar was unable to perform his preinjury duties and had no capacity for work in the period from 3 June 2020 to 19 December 2020. I find that, in keeping with
Dr Bodel’s opinion as to a graded reintroduction to work on light duties, in the period from 20 December 2020 to 30 December 2020 Mr Ganbaatar had capacity to work in light duties cleaning activities for seven hours per week at the rate of $30 per hour.
It was agreed between the parties that the claim for weekly compensation was in the second entitlement period. Pursuant to section 37(1) of the 1987 Act, I calculate that for the period
3 June 2020 to 19 December 2020 Mr Ganbaatar is entitled to weekly compensation at the rate of 80% of $1140, being at $912 per week. For the period from 20 December 2020 to 30 December 2020, pursuant to section 37(1), I calculate that Mr Ganbaatar is entitled to weekly compensation at the rate of 80% of $1140, less actual earnings of $210, being $702 per week.

[2021] NSWPIC 275

4 August 2021