Gardener v Canterbury Bankstown Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gardener v Canterbury Bankstown Council [2024] NSWPIC 132
APPLICANT:	Sonja Gardiner
RESPONDENT:	Canterbury Bankstown Council
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	19 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 expenses including proposed right total knee replacement as a result of injuries to the right knee on 23 March 2018, 5 October 2018 and 10 June 2017; Held – the proposed surgery was reasonably necessary as a result of the work injuries.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant’s s 60 expenses, including associated treatment expenses, in respect of the surgery proposed by Dr Daniel Rahme in his report of 25 March 2022, namely, a total right knee replacement as a result of the injury to the right knee on 23 March 2018, 5 October 2018 and 10 June 2019.

STATEMENT OF REASONS

BACKGROUND

Sonja Gardiner (the applicant) was employed by Canterbury Bankstown Council (the respondent) as a Duty Manager at Canterbury swimming pool.
In the course of her employment on 23 March 2018, the applicant sustained an injury to her right knee whilst taking blanket off Canterbury Swimming Pool. On 5 October 2018 the applicant sustained an injury to her right knee when her right leg fell in a hole in the ground of the turf at her place of employment. On 10 June 2019, in the course of her employment, the applicant twisted her right knee whilst leaving the plant room that houses the filters of the pool.
The applicant made a claim for medical treatment proposed by Dr Daniel Rahme in his report of 25 March 2022, in relation to a total right knee replacement as a result of the injuries on
23 March 2018, 5 October 2018 and 10 June 2019.
The respondent disputed liability for the claim for the proposed surgery to the right knee.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the surgery to the left shoulder proposed by Dr Daniel Rahme, namely, a total right knee replacement is reasonably necessary as a result of the injuries on 23 March 2018, 5 October 2018 and 10 June 2019.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via video link on 8 March 2024. The applicant was represented by Ms Lyn Goodman, who was instructed by Ms Hayley Aldrich of Carroll & O’Dea Lawyers. The respondent was represented by Mr Fraser Doak, who was instructed by Ms Kate Ralph of Bartier Perry Lawyers. Ms Kali Stamoudis and
Ms Anastasia Azzi from the respondent (which is self-insured) also attended the conciliation conference and arbitration.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

SUBMISSIONS

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
However, the respondent submitted that the note made by Dr Rahme in his report of
19 April 2018 of the applicant saying that her right knee was “not bad” prior to her injury meant that her right knee was not asymptomatic but the case for the applicant had been presented on that basis. The respondent argued that the applicant had coped quite well until the end of 2021 which indicated that there was not an unremitting aggravation from the work injuries. The respondent submitted that the surgery was necessary to treat the underlying condition and her work injuries were not a material cause of the need for the proposed surgery.
The applicant submitted that Dr Rahme’s evidence was that the injuries she sustained at work caused an acceleration in her pre-existing right knee condition such that she required a right total knee replacement. The applicant argued that this was a case where the acceleration of the pre-existing condition had bought forward the need for surgery to the right knee and the respondent in that situation was liable to pay for such surgery.

FINDINGS AND REASONS

It was not disputed that the applicant sustained injuries to her right knee on 23 March 2018,
5 October 2018 and 10 June 2019.
The respondent conceded that the treatment proposed by Dr Rahme, that is a right total knee replacement, was appropriate treatment for the condition in the applicant’s right knee.

Evidence of the applicant, Ms Gardiner

In a statement dated 3 December 2023, the applicant stated that after the first frank injury in March 2018, her right knee symptoms remained painful, but she was still able to manage her work duties. She stated that after the third frank injury in June 2019, her knee had deteriorated badly, with increased pain and reduced function. She stated that the pain limited how she could work and she could not use the stairs.
The applicant said that she began seeing Dr Daniel Rahme, orthopaedic surgeon, regarding treating her right knee.
She stated that it had been over five and a half years since she first injured her knee, and over four years since she last injured her knee. She wrote: “In that time my knee symptoms have gotten progressively worse. I am in extreme pain all the time”.
The applicant stated that the pain she is suffering “feels almost unbearable” and she is desperate to have surgery so she can be without pain.

Medical reports

Medico-legal reports

In a report dated16 May 2022, Dr Roger Pillemer, consultant orthopaedic surgeon, noted that the applicant twisted her right knee on 23 March 2018 when she was removing a pool cover. He noted that she had some discomfort in the right knee and went onto restricted duties for a few weeks before returning to normal duties.
Dr Pillemer reported that the applicant continued working until her second injury on
5 October 2018 when her right leg fell into a hole. He reported that she kept on working performing restricted duties and eventually went back to her normal duties until her third injury on 10 June 2019. He reported that on 10 June 2019, the applicant twisted her knee when coming out of the plant room and reported the injury. However, for reasons unrelated to the injury to her right knee, her employment with the respondent was terminated on the following day.
Dr Pillemer noted that the treating specialist had recommended a right total knee replacement. He wrote: “As mentioned, Mr [sic] Gardener feels that her knee has never been completely back to normal since her original injury on 23 March 2018. She does feel that until six months ago she seemed to be managing really well, but since then her symptoms have deteriorated quite significantly”.
Dr Pillemer noted that the applicant said that despite her symptoms “she will ‘push through’ and goes for half an hour walks at least three times a week, suggesting that ‘if I don’t walk it will get worse’.”
Dr Pillemer made a diagnosis of advanced osteoarthritic change of both knees involving in particular the lateral compartments where there is Grade IV osteoarthritis and also the patellofemoral compartments. He described her condition as bilateral and constitutional, and “almost certainly related to her history of having always had valgus knees”. Dr Pillemer was of the view that the incident in March 2018 would be regarded as “fairly minor” and made what was until then an asymptomatic condition become symptomatic.
Dr Pillemer wrote:
“In my opinion the main cause of her need for a total knee replacement at some stage in the future is on the basis of her longstanding advanced osteoarthritic change as noted above. It would be my opinion that the nature and conditions of her employment and the incidents described would be regarded as aggravating factors of her underlying condition, and would not be regarded as the main contributing factor to her ongoing symptoms or the need for surgery.”
Dr Pillemer expressed the opinion that the twisting injury on 5 October 2018 would simply be regarded as an aggravation of her underlying condition and the effects of that aggravation would have ceased.
In a report dated 25 July 2022, Dr Pillemer expressed the opinion that the applicant’s employment with the respondent was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her right knee condition. He considered that her current right knee symptoms were on the basis of her longstanding and very advanced constitutional osteoarthritis of her right knee and she was experiencing the natural progression of her underlying constitutional condition. He wrote: “As noted she has a similar problem with her left knee which will also become symptomatic in the future.”
Dr Pillemer expressed the opinion that a total knee replacement was reasonably necessary at this stage but the need for surgery was based on her constitutional osteoarthritic condition and the work injuries did not materially contribute to the need for surgery.
Associate Professor Nigel Hope, consultant orthopaedic surgeon, in a report dated
16 June 2023 noted that the applicant had pre-existing osteoarthritis in the right knee but this condition was not symptomatic, not diagnosed, not investigated and not treated. He reported that the applicant sustained torsional work-related injuries to the right knee on
23 March 2018, 5 October 2018 and 10 June 2019. He noted that nonoperative treatment of this serious condition has predictably failed and right total knee arthroplasty is proposed.
Associate Professor Hope noted that right knee examination shows knock-kneed alignment with a painful walking pattern, stiffness and tenderness. He noted that the serial MRI show the right knee osteoarthritis (and the lateral meniscal tear). He considered that pre-existing asymptomatic osteoarthritis has been permanently aggravated due to the work-related injury. Associate Professor Hope concluded that right total knee arthroplasty is required and the requirement for surgery is work-related.
Associate Professor Hope described the injuries and treatment as follows:
“Injury 1
On 23 March 2018, pool covers were being pulled off. The right foot was on the safety switch. The covers caught then gave way causing a torsional right knee injury. The injury was reported. The GP was consulted. Physiotherapy was undertaken. There was a partial recovery with ongoing symptoms.
Injury 2
On 5 October 2018, a torsional right knee injury was sustained when stepping into a 30 cm hole under returfed ground at work. The injury was reported. The GP was consulted. Physiotherapy was undertaken. There was a partial recovery with ongoing symptoms.
Injury 3
On 10 June 2019, a right knee torsional injury was sustained when the foot was caught in a barrier post when walking from the plant room. The injury was reported. The GP was consulted. Physiotherapy was undertaken.
Dr Rahme, orthopaedic surgeon, proposed right total knee arthroplasty.
Significant symptoms continue.”
Associate Professor Hope noted that prior to 23 March 2018, the right knee was entirely symptom free. He considered that employment is a substantial contributing factor and the three well described work-related events caused permanent symptoms. He wrote: “Your client suffers from a disease of gradual process. Employment is the main contributing factor to the permanent aggravation because the right knee was entirely symptom-free prior to the work-related event”.
Associate Professor Hope considered that right total knee arthroplasty is required. He believed that the prognosis is good for a significant improvement in function after successful right total knee arthroplasty.

Reports of treating doctors

In a report of the MRI right knee dated 5 April 2018, Dr Luke Deady noted the clinical history of “twisting injury one week ago, effusion? Meniscal tear”. He wrote:
“Impression: Extensive complex lateral meniscal tear with extensive fill thickness chondral loss within the lateral compartment. There is also full thickness chondral loss patellofemoral compartment. There is a large effusion with reactive synovitis present….”
In a report of the MRI right knee dated 15 October 2018, Dr Arnold Kang noted a clinical history of a right knee injury, complete meniscal tear, treated conservatively and a new injury when the applicant fell down a pothole. He wrote:
“1. Complex macerated appearance of the lateral meniscus with meniscal extl'usion. Grade 4 chondromalacia seen of the lateral femorotibial compartment.
2. Old injury to the MCL.
3. Interstitial tear of the ACL and likely additional partial-thickness tear of the mid-substance. Underlying mucoid degeneration.
4. Moderate to large size joint effusion with synovial hyperplasia.
5. There is high-signal intensity seen within the semimembranosus muscle belly consistent with edema with additional foci of high-signal intensity suggestive of tears.”
In a report of the MRI right knee dated 4 July 2019, Dr Arash Azimi-Tabrizi noted a clinical history of a twisting injury to the right knee on 10 June 2019 and known complex meniscal tear and chondromalacia. He concluded:
“Severe lateral compartment osteoarthrosis without any evidence of subchondral insufficiency fracture. There has been mild progression of chondral wear within the medial compartment. Chondral wear within the patellofemoral joint is stable.
Complex degenerative tear of the lateral meniscus is present similar to the previous study with little remaining meniscal tissue. No definite tear of the medial meniscus is present.
Moderate to large sized joint effusion is present. Multiloculated posterior capsular ganglion remains unchanged.”
In a report dated 19 April 2018, Dr Daniel Rahme, treating orthopaedic surgeon, noted that the applicant had been referred for a review of an injury to her right knee. He noted that she had sustained the injury about two weeks ago when she twisted heavily on the right knee with significant pain and swelling. He reported that there had been locking symptoms associated with this suggestive of a loose chondral flap or meniscal tear. He noted on examination a valgus alignment of the right knee, and moderate effusion.
Dr Rahme wrote:
“Sonja states she had minimal right knee symptoms prior to the recent
injury. X-rays and an MRI have demonstrated pre-existing lateral compartment arthritis, consistent with age-related degenerative changes. Sonja has likely sustained an exacerbation or propagation of pre-existing, but asymptomatic, pathology in the right knee. I am hopeful Sonja’s symptoms will improve further in the coming three to four weeks without intervention. I have instructed Sonja on an exercises regime to commence, including the use of an exercise bike, to regain muscle strength.”
In a report dated 10 May 2018, Dr Rahme noted that the applicant’s right knee symptoms had largely settled back to her pre-injury state and she could return to her normal work duties.
In a report dated 12 March 2019, Dr Rahme noted that the applicant returned for a review of her right knee. He wrote:
“Sonja's right knee symptoms remain troublesome but she is managing with non-operative measures. She has been performing normal work duties. Sonja has a valgus alignment of the right knee. Her pain remains primarily lateral. Sonja would benefit from the use of a varising knee brace to help offload the damaged lateral compartment of the knee.”
In a report dated 3 September 2019, Dr Rahme noted that the applicant’s right knee symptoms had deteriorated over the last six months. He reported that she has had increased pain and swelling. He reported that she underwent a corticosteroid injection a number of weeks ago which provided only a few days relief. He noted that an updated MRI demonstrated advanced osteoarthritis. He wrote:
“Unfortunately, Sonja's work injury which has propagated and exacerbated age-related degenerative changes has failed to settle. As Sonja is still quite young, we will attempt to delay the need for total knee replacement for as long as possible. I have recommended review with Dr Bassam Moses, Sports Doctor, for consideration of alternative non-operative modalities to manage Sonja's knee symptoms. Sonja will return for review with me when she is no longer coping with nonoperative measures.”
In a report dated 26 May 2020, Dr Rahme noted that the applicant had sustained an injury to her right knee about two years ago. He reported that she had been managing with non-operative measures including an exercise physiologist but over the last few months the gym had been closed because of the COVID -19 pandemic and she had been unable to exercise regularly. He wrote:
“She has had some deterioration in her symptoms. I have recommended that Sonja continue with non-operative measures for as long as possible. Sonja will require a right total knee replacement in the coming years once her symptoms deteriorate.”
In a report dated 25 March 2022, Dr Rahme noted that the applicant’s right knee symptoms had deteriorated particularly over the last six months. He reported that she had noticed increasing deformity of the right knee. He recommended she undergo a right total knee replacement as reasonable and necessary treatment.
In a report dated 3 October 2023, Dr Rahme noted that the symptoms and right knee deformity have continued to worsen and the applicant was now at the stage where she is ready to proceed with a right total knee replacement.
In a response to a questionnaire sent by the insurer dated 22 November 2023, Dr Rahme expressed the view that the applicant was suffering from “right knee valgus Osteoarthritis” and had pain, swelling, reduced motion and valgus deformity. He stated that the applicant had increasing symptoms and progressive disability since work injury sustained in 2018.
Dr Rahme was of the view that the need for the surgery was partly due to age-related degeneration.
Dr Rahme in answer to the question “Is the recommended right knee surgery reasonably necessary as a result of the injuries Ms Gardener sustained on 5 October 2018?” wrote “Yes. The injury has resulted in an acceleration and/or propagation of the age-related right knee degeneration”. He was of the view that the injury of 5 October 2018 materially contributed to the need for the recommended surgery.
In an undated response to a questionnaire sent by the insurer, Dr Rahme was asked if he considered that employment was a significant contributing factor to the knee injury and relied “yes”. He was of the view that surgery would provide significantly improved pain and quality of life and a return to pre-injury duties.
The clinical notes of Dr Rahme included the following entries:
(a)    On 18 April 2018, Dr Rahme wrote:
“Right knee injury > 2/52, knee not bad prior.
twisted knee as pulling pool blanket off
pain and swelling, slight improvement
locking – lateral sx
valgus alignment
5-120
effusion
lat comp bone on bone”
(b)    On 10 May 2018, Dr Rahme noted: “right knee settled to pre-inj state.”
(c)    On 12 March 2019, Dr Rahme noted “right knee symptoms slowly worsening…working normal duties”.
(d)    On 3 September 2019, Dr Rahme noted:
“Advanced right knee OA, valgus
Pain and f’n deteriorating ...
Will require TKR when ready
Dr Moses to max non-operative treatment”.
(e)    On 26 May 2020 Dr Rahme noted that the right knee “worsening… EP helped gym closures less exercise will need TKR at some stage not ready yet”

In a report dated 15 July 2019, Dr O’Rourke, radiologist, noted that the applicant underwent a CT - guided right knee injection.
In a report dated 17 September 2019, Dr Bassam Moses, treating sports and exercise medicine physician, noted that the applicant had caught her right foot on a pipe in the plant room on 10 June 2019 and she twisted her right knee and suffered pain and swelling immediately after the injury. He noted that the applicant had sustained earlier injury to the right knee in 2018 which did not completely resolve and then a further injury when she stepped into a grass covered hole and again aggravated the right knee.
Dr Moses noted that she had occasional locking in the right knee, catching, instability and regular swelling. He wrote:
“I have discussed with Sonja evidence based conservative management of her knee osteoarthritis. I have taken her through weight management strategies along with strengthening program with increase strength of her knee. We have also discussed pain management strategies which include regular icing the use of regular Panadol
Osteo two tablets three tablets two times a day and to continue with her Mobic for breakthrough pain. I have also suggested that she may benefit from the use of a patella tracking brace and a medial heel raise.”
In a report dated 29 October 2019, Dr Moses noted that the applicant reported significant improvement with her exercise-based program.
In a report dated 12 November 2018, Mr Dave Calman, physiotherapist, noted that the applicant presented further two injuries to her right knee. He reported that when standing her right knee had a large valgus deformity which was apparently longstanding “and would explain a lot of the features of her MRI”. He noted that she was progressing well and reporting more strength and less pain.
In a report dated 24 October 2019, Mr David Hillard, physiotherapist, noted that the applicant initially attended on 19 September 2019 reporting occasional sharp pain when walking, weakness and pain descending stairs and needing to use her hands to help rise from a chair. He noted that she was diligently attending a gym and had a home-based exercise program. He recommended she transition to supervised exercise physiology sessions.
In a Vocational Assessment report dated 30 October 2019, Ms Laila Ayshan of i-Fit Rehab noted that after the second injury to the right knee on 5 October 2018, the applicant was referred to see Dr John Barlow, the council doctor. Dr Barlow referred her for an MRI and to a physiotherapist, Mr Dave Calman. He wrote: “Ms Gardiner advise that she returned to light duties on January 16, 2019; she did not recall how long she was on light duties before advising she returned to her normal duties.”
Mr Cameron Hyde, exercise physiologist, in a report dated 14 November 2019 noted that the applicant presented on 14 November 2019 following her most recent exacerbation of her right knee injury which occurred on 10 June 2019. The applicant reported her current symptoms as pain in the anterior knee, below the patella and in the lateral knee compartment when walking or standing for too long. He noted that her capacity for walking was 30 minutes. Mr Hyde noted that she reported having good and bad days with her knees.
Mr Hyde proposed to provide education regarding management of her knee injury and promote self-management and provide appropriate strength training, advice and a gym-based exercise program to assist in improving functional capacity and reducing long term reliance on treatment.
Mr Cameron Hyde, exercise physiologist, in a report dated 6 December 2019 noted that the applicant had completed five supervised exercise physiology treatment sessions between
14 November 2019 and 5 December 2019. He reported that she had made sound improvements to her lower limb strength, tolerance to repetition, walking tolerance and reported quality of life. He recommended further treatment sessions.
On 14 October 2020. Mr Hyde noted that the applicant presented with “rosening knee and hip pain right sided “[sic]. He noted she was to have a review with her specialist regarding knee replacement.

Discussion

The matter to be determined is whether the surgery proposed by Dr Daniel Rahme, namely, a total right knee replacement was reasonably necessary as a result of the injury to the right knee on 23 March 2018, 5 October 2018 and 10 June 2019.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated [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.”
Further, his Honour stated 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 common sense 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.”
The High Court in Comcare v Martin (2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”. In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3 (2005) HCA 26, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd (1991) HCA 12, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
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 referred to the recent decision of Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 where Kirk JA considered the test in s 9A of the 1987Act and the meaning of “substantial contributing factor” and “common sense causation”. Kirk JA at [107] said:
“The notion of common sense in legal causation has been employed to connote a number of ideas, including the following. First, it is used to indicate that it is an evaluative question of fact, to be assessed in a practical manner. That seems to be the sense it was used in Hunt & Hunt and other such judgments. Historically, this point was linked to the fact that questions of causation were often matters for a jury, and the High Court discouraged “judicial directions containing theoretical analysis and exposition”: see Booth at [65]. As senior counsel for Ms Fisher himself put it, “at the end of the day, if it’s meant to indicate that an evaluative process is informed by the sense of the person applying it, it’s hardly remarkable”. It was on that basis that senior counsel said that the appellants did not need to challenge the statement made in the joint judgment in Badawi that causation “is a fact-laden conclusion which the courts have been told must be based on common sense” (at [81], citing March v Stramare and Nunan). Kirby P’s statement in Kooragang that “[w]hat is required is a commonsense evaluation of the causal chain” is of a similar nature (at 463-464).”

And at [111]

“In this context, two members of the High Court have recently gone so far as to say that ‘the concept of common sense should be eschewed when applying the principles of causation’: Young v Chief Executive Officer (Housing)[2023]HCA 31; (2023) 97 ALJR 840 at [60] per Gordon and Edelman JJ. As is implicit in that statement, there are some dangers in invoking common sense in evaluating causation issues. In particular that is so if the notion distracts from either the need to consider any normative and policy-based limitations on the broad reach of the “but for” test of causation or, relatedly, the need to consider the nature of any statutory causation test in its particular statutory context. This does not mean, however, that any invocation of common sense involves legal error.”

The respondent did not dispute that the applicant had sustained injuries to her right knee on 23 March 2018, 5 October 2018 and 10 June 2019. The respondent’s case was that these injuries at work had resolved and the need for surgery arose from symptomatic pre-existing conditions in the right knee. Therefore, the proposed treatment was not reasonably necessary.
The applicant gave evidence, which I accept, that after the first frank injury in March 2018, her right knee symptoms remained painful, but she was still able to manage her work duties. She stated that after the third frank injury in June 2019, her knee had deteriorated badly, with increased pain and reduced function. She stated that it had been over five and a half years since she first injured her knee, and over four years since she last injured her knee and in that time her knee symptoms have got progressively worse.
The evidence concerning whether the pre-existing conditions in the right knee were asymptomatic or symptomatic before the first injury on 23 March 2018 is to be found in the medical reports and the clinical notes and records. It appears that both the independent medical examiners, that is, Dr Pillemer and Associate Professor Hope, recorded a history of the pre-existing osteoarthritic and valgus conditions being asymptomatic before the injury on 23 March 2018.
Dr Rahme, in his clinical notes dated 18 April 2018, wrote: “Right knee injury > 2/52, knee not bad prior”. In a report dated 19 April 2018, he noted that the applicant stated she had minimal right knee symptoms prior to the recent injury. However, Dr Rahme went on to write: “Sonja has likely sustained an exacerbation or propagation of pre-existing, but asymptomatic, pathology in the right knee”. Dr Rahme’s report should be considered in its entirety and despite taking a history of “knee not bad prior” and the applicant having minimal symptoms prior to the recent injury”, Dr Rahme regarded her injury on 23 March 2018 as being an exacerbation or propagation of pre-existing, but asymptomatic, pathology in the right knee.
I consider that the phrase “not bad” is an imprecise term with a range of meanings. Indeed, it can mean in some situations that things are OK or satisfactory. The report by Dr Rahme of the applicant having minimal symptoms prior to the recent injury, although more precise, again must be considered in the context of the full report and Dr Rahme proceeds to describe the pre-existing condition in the right knee as being asymptomatic before the injury on 23 March 2018. On balance I accept Dr Rahme’s assessment of the right knee condition being asymptomatic before the injury on 23 March 2018. However, if I am wrong in this, I would consider that any symptoms in the right knee before the injury on 23 March 2018 were very minor, did not require any treatment or investigation and had no impact on the applicant’s capacity to work.
The respondent made reference to the history Dr Pillemer took on 16 May 2022 of the applicant feeling that until six months ago “she seemed to be managing really well, but since then her symptoms have deteriorated quite significantly”. This history has to be considered in light of the other medical evidence, particularly, the evidence of the treating doctors.
On 10 May 2018 Dr Rahme noted that the applicant’s right knee symptoms had largely settled back to her pre-injury state and she could return to her normal work duties. The applicant stated that her right knee remained painful but she was able to manage her work duties.
The applicant sustained a further injury to the right knee on 5 October 2018. Ms Laila Ayshan of i-Fit Rehab, in her report dated 30 October 2019, noted that after the second injury to the right knee on 5 October 2018, the applicant was referred to see Dr John Barlow, the council doctor. The applicant was referred for an MRI and onto a physiotherapist, Mr Dave Calman. She noted that the applicant advised that she returned to light duties on 16 January 2019 but did not recall how long she was on light duties before she returned to her normal duties.
On 12 March 2019, Dr Rahme noted that the applicant returned for a review of her right knee. He noted that the applicant’s right knee symptoms remained troublesome but she was managing with non-operative measures and had been performing normal work duties.
On 3 September 2019, Dr Rahme noted that the applicant’s right knee symptoms had deteriorated over the last six months. He reported that she has had increased pain and swelling and underwent a corticosteroid injection a number of weeks ago which provided only a few days relief. He noted that an updated MRI demonstrated advanced osteoarthritis.
Dr Rahme reported that the applicant’s work injury which has propagated and exacerbated age-related degenerative changes had failed to settle. He noted that she was still quite young, and they would attempt to delay the need for total knee replacement for as long as possible. He recommended review by Dr Moses for consideration of alternative non-operative modalities to manage the applicant’s knee symptoms. He recommended that the applicant return for review with him when she was no longer coping with nonoperative measures.
It was clear that by 3 September 2019, the applicant’s work injury had not resolved and indeed, the treating specialist recommended she delay the need for the right total knee replacement for as long as possible as she was still quite young. At this stage in later 2019, the applicant was referred to Dr Moses in order to look at non-operative modalities of treatment to manage her right knee symptoms.
On 26 May 2020, Dr Rahme noted that the applicant had been managing with non-operative measures including an exercise physiologist but over the last few months the gym had been closed because of the COVID -19 pandemic and she had been unable to exercise regularly. He reported that she had some deterioration in her symptoms but recommended that she continue with non-operative measures for as long as possible.
On 14 October 2020, Mr Hyde noted that the applicant presented with “rosening knee and hip pain right sided” [sic] and was to have a review with her specialist regarding knee replacement.
On 25 March 2022, Dr Rahme noted that the applicant’s right knee symptoms had deteriorated particularly over the last six months. He recommended she undergo a right total knee replacement.
In a response to a questionnaire sent by the insurer dated 22 November 2023, Dr Rahme stated that the applicant had increasing symptoms and progressive disability since the work injury sustained in 2018. Dr Rahme did accept that the need for the surgery was partly due to age-related degeneration. In answer to the question “Is the recommended right knee surgery reasonably necessary as a result of the injuries Ms Gardener sustained on 5 October 2018” Dr Rahme wrote “Yes. The injury has resulted in an acceleration and/or propagation of the age-related right knee degeneration”. He was of the view that the injury of 5 October 2018 materially contributed to the need for the recommended surgery.
I am not persuaded that the history Dr Pillemer took of the applicant feeling until six months ago that “she seemed to be managing really well, but since then her symptoms have deteriorated quite significantly” was accurate. The reports and notes of Dr Rahme, Dr Moses and Mr Hyde support a finding that the applicant’s work-related injuries to the right knee had not settled or resolved and that the condition had deteriorated in 2019. The treating doctors in September 2019 expressed the view that she would eventually need a total knee replacement but wanted to attempt to delay that surgery for as long as possible by the use of non-operative measures.
It appears that Dr Pillemer also took an incorrect history in relation to the applicant’s return to work after her various injuries. Dr Pillemer noted that after the first injury on 23 March 2018 the applicant did not have any time off work but simply went onto restricted duties for a couple of weeks. In fact, Dr Rahme on 10 May 2018, some seven weeks after the injury, noted that the applicant’s right knee symptoms had largely settled back to her pre-injury state and she could return to her normal work duties. I accept that the applicant had about seven weeks on restricted duties, not a couple of weeks, after the first injury.

The second injury to the right knee occurred on 5 October 2018 and Dr Pillemer reported that the applicant did not take any time off, simply did restricted duties and eventually returned to her normal duties. However, Ms Ayshan on 30 October 2019, noted that after this second injury the applicant was referred to see Dr John Barlow, the council doctor, was referred for an MRI and to a physiotherapist, Mr Dave Calman. Ms Ayshan noted that the applicant advised that she returned to light duties on 16 January 2019, that is, more than three months after the second injury on 5 October 2018. Again, the history obtained by Dr Pillemer was incorrect and the applicant had much longer periods on suitable duties or off work following these first two injuries than reported by Dr Pillemer.
Dr Pillemer considered that the fact the applicant did not have any time off work and went onto restricted duties after the first and second injuries was important and went onto to describe the incident on 23 March 2018 as being “fairly minor”. I do not accept that the injuries sustained by the applicant to her right knee were minor as she was on suitable duties for seven weeks after the first injury and off work for over three months after the second injury and her right knee had remained painful after the first injury.
Dr Pillemer was of the view that the applicant could have aggravated the pre-existing condition in her right knee in the twisting injury on 5 October 2019 but that the effects of that aggravation had ceased. However, Dr Pillemer did not explain why the effects of the aggravation had ceased and after considering the evidence of Dr Rahme and Dr Moses it simply was not plausible to accept that the aggravation had ceased.
Dr Pillemer noted that the applicant was “very likely” to develop similar symptoms in her left knee in the reasonably near future. However, he failed to take into account that fact that the applicant has not developed similar symptoms in the uninjured left knee and has only developed symptoms in the right knee which she injured on three occasions in her employment with the respondent.
Both Associate Professor Hope and Dr Rahme considered that the proposed surgery was reasonably necessary as a result of the work injuries. Dr Rahme has seen the applicant on a a number of occasions and, in my view, was better placed to assess her right knee condition and to form an opinion as to the causation of her right knee condition and the treatment required for it.
I have preferred the opinions expressed by Associate Professor Hope and Dr Rahme to the opinion of Dr Pillemer. Dr Pillemer, in my view, did not take an accurate history as noted above.
On balance I am satisfied that the applicant sustained a permanent aggravation and acceleration of a pre-existing right knee condition and this was caused by the injuries on
23 March 2018, 5 October 2018 and 10 June 2019.
The weight of the medical evidence supports a finding that the applicant sustained injuries to her right knee in the incidents on 23 March 2018, 5 October 2018 and 10 June 2019. I am satisfied that the injuries on 23 March 2018, 5 October 2018 and 10 June 2019 made a material contribution to the need for right knee surgery proposed by Dr Rahme and that the proposed medical treatment is reasonably necessary as a result of the injuries on
23 March 2018, 5 October 2018 and 10 June 2019.
I order that the respondent pay the applicant’s s 60 expenses in respect of the treatment proposed by Dr Daniel Rahme, namely, a right total knee replacement, as a result of the injuries on 23 March 2018, 5 October 2018 and 10 June 2019.

[2024] NSWPIC 132

19 March 2024