Giacalone v The Trustees for the Leighton Family Trust
[2021] NSWPIC 89
•21 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Giacalone v The Trustees for the Leighton Family Trust [2021] NSWPIC 89 |
| APPLICANT: | Joseph Giacalone |
| RESPONDENT: | The Trustees for the Leighton Family Trust |
| MEMBER: | Ms Jill Toohey |
| DATE OF DECISION: | 21 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for reasonably necessary expenses of left total knee replacement; accepted injury to the right knee, hip and lumbar spine; whether worker developed a consequential condition in his left knee; antalgic gait; overuse of left knee; Held- worker developed antalgic gait; overused left knee; finding that the worker developed a consequential condition as a result of his accepted injury; accepted injury materially contributed to the need for the left total knee replacement; respondent to pay the applicant’s reasonably necessary costs of the proposed treatment. |
| DETERMINATIONS MADE: | 1. The applicant suffered a consequential condition to his left knee as a result of an accepted injury to his right knee sustained on 5 September 2018. 2. The left total knee replacement recommended by Dr Jason Tsung is reasonably necessary as a result of the applicant’s injury. 3. The respondent is to pay the reasonably necessary costs of the surgery recommended by 4. The respondent is to pay the applicant’s reasonably necessary section 60 expenses. |
STATEMENT OF REASONS
BACKGROUND
Joseph Giacalone (the applicant) was working for the respondent as a cabinetmaker in 2018 when he sustained injuries on two occasions.
The first injury occurred in February 2018 when Mr Giacalone stepped backwards and fell from a parking pad onto a descending driveway. His right knee was immediately sore. Over the following months, his knee ached intermittently but did not prevent him from performing his duties.
The second injury occurred on 5 September 2018 when Mr Giacalone was working on a kitchen renovation at the home of a customer. While carrying a cabinet up a ladder to secure it to the wall, he fell, landing on his right leg, hip and back. He was immediately aware of severe pain in his right knee, right leg and hip, and lower back.
The respondent accepted liability for injuries to Mr Giacalone’s right knee, leg and hip and, ultimately, his lumbar spine.
In June 2019, Mr Giacalone underwent a right total knee replacement at the hands of
Dr Jason Tsung. Mr Giacalone says that, in the time it took for the surgery to be approved by the insurer, he was in a lot of pain, but he is pleased with the result.Mr Giacalone claims that, as a result of the injury to his right knee in February 2018 and the further injury on 5 September 2018, he developed a consequential condition in the left knee as a result of favouring the right. Dr Tsung recommends he undergo a left total knee replacement. Mr Giacalone claims compensation for the cost of the proposed surgery and a general order for payment of reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (the Act).
By a dispute notice issued on 18 July 2019, the respondent denied liability for injury to
Mr Giacalone’s left knee and lumbar spine. By a further notice issued on 27 October 2020, the respondent withdrew the dispute in relation to the lumbar spine, leaving the left knee in contention.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr Giacalone suffered a consequential condition in his left knee as a result of the accepted injury to his right knee;
(b) whether the proposed left total knee replacement is reasonably necessary as result of the workplace injury.
PROCEDURE BEFORE THE COMMISSION
At a telephone conference on 15 January 2021, the matter was listed for conciliation/arbitration hearing on 18 February 2021. The matter could not proceed on that date because of telecommunications problems outside the Commission’s and parties’ control, and the hearing was relisted for 8 April 2021.
At the hearing on 8 April 2021, Mr Andrew Parker of counsel appeared for Mr Giacalone, and Mr Paul Stockley of counsel appeared for the respondent.
Mr Parker sought leave to amend the Injury Details at page 6 of the Application to Resolve the Dispute (ARD) to include the injury in February 2018 so as to reflect the Injury Description in the ARD. There was no objection and leave was granted.
Mr Parker also sought leave to amend the ARD to include a claim for a general order for section 60 expenses. There was no objection and leave was granted.
Mr Parker objected to the admission of reports dated 19 January 2021 and 29 January 2021 by Dr Paul Robinson which were attached to an Application to Admit Late Documents lodged by the respondent on 1 April 2021. Mr Stockley submitted that, other reports by Dr Robinson having been tendered previously, the respondent should tender them all. Mr Stockley submitted there would be no prejudice to the applicant in the reports being admitted.
Mr Parker submitted that the applicant would be prejudiced by the admission of reports to which he would have no opportunity to respond. Further, that no explanation had been offered by the respondent as to why the documents were produced so late in the proceedings.
I refused the respondent’s application. No reason was advanced by the respondent as to why the documents were produced so late. Although it was not clear from either report when it was requested, both post-dated the telephone conference on 15 January 2021 at which both parties advised they did not propose to lodge further documents. Importantly, I accepted that, without the opportunity to respond to them, the applicant was potentially prejudiced by their admission.
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) ARD and attached documents;
(b) Reply and attached documents.
Oral Evidence
Neither party sought to adduce oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Mr Giacalone’s evidence
Mr Giacalone’s evidence is set out in a statement dated 7 January 2020. The following is a summary.
Mr Giacalone was born in December 1957. He had a motorcycle accident approximately 40 years ago in which he injured his right knee, requiring surgery and steroid injections. He recovered from that injury and was able to continue working.
In March 2017, Mr Giacalone started work with the respondent. In February 2018, he injured his right knee when he stepped backwards onto a descending driveway. He was off work for two days and was unable to put weight on his right knee for four. The swelling went down and he returned to work. He reported the incident to his employer but did not take the matter further.
Between February 2018 and August 2018, Mr Giacalone’s right knee ached intermittently but did not stop him doing his work. His work was very heavy and involved carrying large and awkward loads, assuming awkward positions, climbing up and down ladders and so on. In August 2018, he began to notice increased pain in his right knee serious enough for him to see his then general practitioner. The knee was swollen and had started to give way. His doctor prescribed pain medication and referred him for x-ray and ultrasound, and then for an MRI.
The MRI was performed on 4 September 2018 but, before he could see his doctor to discuss the results, Mr Giacalone had his second injury. He describes how, on 5 September 2018, he was working alone on a job that he says should have involved two people. As he was trying to carry a cabinet up a ladder to secure it in place on the wall, he fell onto the tiled floor. He was immediately aware of severe pain in his right knee, leg, hip and lower back.
Mr Giacalone saw general practitioner, Dr Shauna Purser, on 7 April 2018, being the earliest appointment he could obtain. She issued him with a WorkCover certificate and prescribed Endone. On 14 September 2018, Dr Purser referred him for physiotherapy and ordered another MRI of his right knee. It showed a right medial collateral ligament tear and Dr Purser referred him to Dr Jason Tsung, orthopaedic surgeon.
On 29 October 2018, Dr Tsung gave Mr Giacalone a Synvisc injection in the right knee. When it was apparent by February 2019 that the knee was not getting better, Dr Tsung recommended surgery.
Mr Giacalone says that, over time, as he was limping and relying on a walking stick because of his right knee, he began to have pain in his left knee. In early November 2018, he was trying to get out of his car and twisted his left knee while trying to protect his right. After that incident, his left knee was in a brace but he still had to lean very heavily on it because his right knee was so painful. When he walked anywhere, he put all his weight on his left knee because it was less painful than the right.
Mr Giacalone says that, by April 2019, his left knee was very painful. Dr Purser told him it was likely that his left knee condition arose from overuse due to his right knee pain. She referred him for an MRI of the left knee.
Over the following months while he was awaiting approval from the insurer for the further MRI, Mr Giacalone says his left knee kept getting worse.
On 20 June 2019, Mr Giacalone underwent a right total knee replacement at the hands of
Dr Tsung. The surgery went well and Mr Giacalone says he is pleased with the results. However, his left knee has continued to get worse. He has since undergone an MRI which shows a tear of the medial meniscus and osteoarthritis.
Ms Giacalone’s evidence
Mr Giacalone’s wife, Tina Giacalone, describes a number of occasions on which his right knee gave way. She says it has been good since the surgery but his left knee has not. He now walks leaning to the right.
Dr Tsung’s reports
Dr Tsung first saw Mr Giacalone on 29 October 2018. He reported to Dr Purser, relevantly, that Mr Giacalone “has had difficulty weight-bearing”[1] since the fall in September 2018. He was taking regular Endone and using a walking stick and a soft knee brace. He had an exercise tolerance of less than five minutes with a walking stick. He had “some quads and calf wasting”[2] on the right side. An MRI confirmed Grade 4 osteoarthritis in the knee as well as an acute intermediate grade MCL tear.
[1] ARD at page 66
[2] ARD at page 66
Dr Tsung concluded that Mr Giacalone had “an acute intermediate tear of his MCL plus an acute flare of his arthritic knee with significant functional limitation.”[3] He referred
Mr Giacalone for some physiotherapy and said he would arrange a Synvisc injection.[3] ARD at page 67
Although Dr Tsung’s report does not specify that he saw Mr Giacalone in relation to his right knee, it is clear from Dr Purser’s records that she referred him to Dr Tsung for his right knee.
Dr Tsung provided further reports on 4 January 2019, 27 February 2019, 20 June 2019,
3 July 2019, 31 July 2019, 17 September 2020, 2 October 2019 and 31 October 2019.On 4 January 2019, Dr Tsung reported that Mr Giacalone had had good response to the Synvisc injection but still had pain with weight-bearing activity. He had at least 50 per cent improvement in his knee function and was walking with a single cane “on occasion”, and with a soft knee brace. If there was no significant functional improvement, the next option would be total knee replacement.
On 27 February 2019, Dr Tsung reported that “unfortunately”, Mr Giacalone’s knee was back to where they started and he had “constant functional pain due to his arthritic right knee.”[4] As all appropriate nonoperative measures had been exhausted, the alternative was total knee replacement with which Mr Giacalone was keen to proceed.
[4] ARD at page 70
On 20 June 2019, Dr Tsung reported to Dr Purser that the right total knee replacement performed that day went smoothly. On 3 July 2019 and 31 July 2019, he reported that
Mr Giacalone was doing well post-surgery.On 2 October 2019, Dr Tsung saw Mr Giacalone about his left knee. Dr Tsung made a diagnosis of “Workplace injury 2018” and “?Lateral meniscus tear left knee with ongoing mechanical symptoms”.[5] He said that, “as a result of his right knee treatment, he has been favouring his left knee and has ongoing symptoms mainly on the lateral joint line as well as centrally.”[6] Mr Giacalone told him his knee had been a symptomatic up until roughly February 2019. He noted that Mr Giacalone had “an antalgic gait pattern on the left.” He concluded:
“I think the differential diagnosis here is a lateral meniscus tear with mechanical instability which is likely an acute on chronic tear with worsening propagation since he has been using this any more heavily as his right knee has become more and more dysfunctional leading up to his knee replacement and then again after his knee replacement in the early post-operative period.”[7]
[5] ARD at page 76
[6] ARD at page 76
[7] ARD at page 77
On 31 October 2019, Dr Tsung reported that the MRI scan did not show a lateral meniscus tear but some popliteal insertional enthesopathy. He recommended an ultrasound-guided injection and a course of physiotherapy.
On 17 September 2020, Dr Tsung reported to Dr Purser that Mr Giacalone’s left knee continued to deteriorate and he now had worsening varus malalignment and functional pain. He had a combination of knee and back pain requiring opiates for relief. He was using a walking stick to get around. Plain weight-bearing radiographs showed progression of the arthritic change to high grade 3 changes to the medial compartment, grade 2 to the patellofemoral joint and a normal lateral compartment. Mr Giacalone was at the point of requiring a left knee replacement and, meanwhile, Dr Tsung said, he would arrange an ultrasound guided corticosteroid injection into the knee.
On 11 November 2020, Dr Tsung reported to Mr Giacalone’s solicitors in response to a number of questions. He said Mr Giacalone had failed nonoperative management of his left knee osteoarthritis and, given his severe functional limitation, surgery was indicated.
Dr McKee’s reports
Dr John McKee, orthopaedic surgeon, saw Mr Giacalone for assessment on 3 February 2020. He was provided with Mr Giacalone’s statement of evidence and medical reports including from Dr Tsung and Dr Paul Robinson, qualified by the respondent.
Dr McKee noted that Mr Giacalone sustained an injury to his right knee joint in 1980 in a motorcross event, that he was off work for one to two months, and that he had not been left with any significant residual disability. He noted that Mr Giacalone’s duties had been physically demanding, that his right knee subsided after the injury in February 2018 but was swollen and painful by August 2018, and that investigations revealed osteoarthritic changes. He noted the report of the MRI on 4 September 2018.
On examination, Dr McKee noted that Mr Giacalone had “a pronounced left-sided antalgic gate, resulting in a slow shuffling walk”[8] and was using a walking stick. He noted the MRI of the left knee on 25 October 2019 revealed “horizontal tearing of the medial meniscus with moderate grade medial compartment chondrosis and features of osteoarthritis.”[9]
[8] ARD at page 53
[9] ARD at page 56
Dr McKee noted that Dr Tsung reported that Mr Giacalone had difficulty with weight-bearing ever since the fall; that he had been using a walking stick and had some quadriceps and calf muscle wasting; that he started to experience pain in his left knee and had twisted his knee getting out of a car in November 2018; that he had a left knee brace, and was still leaning very heavily on his left knee leading up, and after, the right total knee replacement.
Dr McKee said he agreed with Dr Tsung that, as a result of Mr Giacalone’s right knee treatment, he had been favouring his left knee and had ongoing symptoms mainly on the lateral joint line as well as centrally. He agreed with Dr Tsung’s differential diagnosis of a lateral meniscus tear with mechanical instability likely an acute on chronic tear with worsening propagation since he had been using his left knee more heavily as his right became more and more dysfunctional.
At the time of his report, Dr McKee said there was currently no indication for any major left knee joint surgery, including joint replacement. He concluded that Mr Giacalone had:
“Continuing chronic left knee joint pain and instability, partly due to increasing wear and tear produced by the antalgic limp secondary to an acute on chronic lateral meniscus tear through using his left knee more heavily on account of the increasing dysfunctional right knee joint, prior to and following the right knee joint replacement procedure.”
Dr McKee concluded that Mr Giacalone’s employment with the respondent was the main contributing factor to the aggravation, exacerbation, acceleration or deterioration of a disease in his right knee, left knee and lumbar spine. He said the left total knee replacement recommended by Dr Tsung was reasonably necessary as a consequence of Mr Giacalone’s work related injury.
With regard to Dr Robinson’s reports, Dr McKee said, relevantly, that he disagreed with
Dr Robinson’s opinion that the left knee condition was not related to the right knee injury. He reiterated his opinion that the severity of the right-sided antalgic gait and the right knee joint instability led Mr Giacalone to place increasingly more weight on his left knee joint, prior to surgery and post operatively, causing an apparent minor aggravation of pre-existing a symptomatic degenerative changes, “but of more importance, the acute left-sided popliteal tendinosis”. He said:
“I disagree with Dr Robinson’s opinion that the left knee condition is not work-related. This has already been outlined, where the pre-existing degenerative changes in the left knee joint, of a minor nature, had been exacerbated, whereas the principal continuing problem is the left-sided popliteal tendonopathy. In my opinion, that tendonopathy had been work-related, it is continuing, and it requires treatment. The work-related injuries had caused acute flare-ups, of degenerative changes and tendonopathy, and in my opinion this is continuing.”[10]
[10] ARD at page 62
In a further report dated 15 October 2020, Dr McKee said Mr Giacalone’s employment with the respondent “materially contributed to” the need for the left knee surgery recommended by Dr Tsung. He referred to the MRI left knee on 25 October 2019 which confirmed the presence of moderate grade medial compartment chondrosis and osteoarthritis, to his clinical examination of Mr Giacalone’s left knee on 3 February 2020, and his agreement with
Dr Tsung that the left knee joint problem was principally due to tendonosis of the insertional popliteus tendon.
General practitioners’ records
Clinical records of Queen Street Medical Centre from 8 November 2017 to 22 August 2019 show that, on 6 December 2017, Dr Malkanthi Hewage recorded that Mr Giacalone suffered from “chronic arthritis of knuckles and knees”[11]. Mr Giacalone next saw Dr Hewage on 17 August 2018 complaining of right knee pain and swelling.[12]
[11] ARD at page 179
[12] ARD at page 179
On 7 September 2018, Dr Purser recorded that Mr Giacalone fell off a ladder at work and had acute pain and swelling of the right medial side of the knee. In a letter dated 19 August 2020 to EML, she confirmed that she diagnosed a right medial collateral ligament tear, which was subsequently confirmed on imaging.[13]
[13] ARD at page 81
On 14 September 2018, Mr Giacalone continued to have pain and Dr Purser referred him for physiotherapy and ordered an MRI. On 24 October 2018, she referred him to Dr Tsung.
On 9 November 2018, Dr Purser noted that Mr Giacalone injured his left knee getting out of car “and has medial meniscus injury to this.” [sic][14]
[14] ARD at page 182
On 29 November 2018, Dr Hewage recorded that Mr Giacalone presented for pain management and had “braces on both knees”.[15] On 13 December 2018, Dr Purser noted he had had a right knee injection the previous day by Dr Tsung.
[15] ARD at page 183
On visits over the following months, Dr Purser noted continuing pain in the right knee and prescriptions for Endo. On 8 April 2019 she requested an MRI, noting:
“left knee now very painful
likely overuse due to R knee pain”[16][16] ARD at page 186
Physiotherapy reports
Abby Aitchison, physiotherapist, reported to Dr Purser on 8 November 2018 that Mr Giacalone had “very limited utility of R knee and aberrant gait and transfers”.[17]
[17] ARD at page 252
On 27 November 2018, Ms Aitchison reported to Dr Tsung that Mr Giacalone initially hurt his right knee in February and again in September. He had been using a knee brace and SPS (walking stick) and was exhibiting “an antalgic gate and fear avoidance behaviours, resulting in an excessively dysfunctional and weakening knee.”[18]
[18] ARD at page 257
Dr Robinson’s reports
Dr Robinson provided reports dated 29 April 2019 and 30 May 2019. He was provided with Dr Tsung’s reports and a number of imaging reports. He noted that, within four weeks of the injury on 5 September 2018, an MRI of the right knee revealed grade 4 arthritic change in the medial compartment.[19] He noted that Mr Giacalone also had pain in his left knee “which he relates to increased usage of such.” He noted that Mr Giacalone’s “gait is antalgic in nature with him holding on to objects in order to produce a satisfactory movement” and “He walks up and down stairs carefully one at a time.”[20]
[19] Reply at page 3
[20] Reply at page 4
Dr Robinson took a history of a severe injury to Mr Giacalone’s right knee 40 years earlier from which he had returned to normal activities after four months.
Dr Robinson’s report appears to focus primarily on the right knee which, he said, had resulted in severe degenerative change which had advanced to a stage where it required a total joint replacement. He said the injury in September 2018 “caused some exacerbation of the underlying problem but was not the initiating cause for the arthritis and was not the reason for a total joint replacement being required.”[21]
[21] Reply at page 5
At this point, I note that, although Dr Robinson considered the need for the right total joint replacement was not related to Mr Giacalone’s employment with the respondent, the respondent had already agreed accepted liability for the proposed surgery.
In response to questions, Dr Robinson said of the right knee there was underlying pre-existing arthritis “exacerbated but not caused by an injury in September 2018.”[22]
[22] Reply at page 5
With respect to the left knee Dr Robinson said there was a “soft tissue injury - minimal investigations have been performed to confirm underlying degenerative problems.”[23] He concluded that the left knee condition was not related to the right knee injury. He said:
“His left knee condition and lumbar spine condition is not work related - it has been an exacerbation perhaps of underlying problems within the knee and certainly within the spine, and these should be treated conservatively.”[24]
[23] Reply at page 6
[24] Reply at page 6
In summary, Dr Robinson said:
“Mr Giacalone has underlying pre-existing arthritis in his right knee and lumbar spine. The pathology in these areas has been exacerbated but not caused by the work related injury and any treatment of such is required by the constitutional and pre-existing problems not by the work related injuries.”[25]
[25] Reply at page 7
In a supplementary report date 30 May 2019, Dr Robinson said he had reviewed his notes and the documentation provided to him previously. He said it should be noted that
Mr Giacalone had severe degenerative change at the time of the work related injury in September 2018. The incident at work exacerbated with the problem but did not cause it.In response to a question about the right knee symptoms, Dr Robinson said the incident “may have been the final event in Mr Giacalone’s his knee problems” but the workplace incident would not have required a total joint replacement unless there was underlying pre-existing arthritis and, “eventually, the arthritic problems would have required a total joint replacement”.[26]
[26] Reply at page 9
With respect to the right and left knees (and lumbar spine), Dr Robinson said there was an exacerbation by the workplace injury but “the reason for the total joint replacement is not the work related injury but the pre-existing arthritis related to his injury 40 years ago.” He said the symptoms Mr Giacalone complained of “were related to the underlying pre-existing arthritic change and the natural history of such.”[27]
[27] Reply at page 9
Finally, in response to a question as to whether the left and right knee conditions were due to “the nature and conditions of his employment rather than a frank incident” Dr Robinson said the left knee injury was related to pre-existing problems. He referred to the lumbar spine and concluded “the symptoms which he describes are due to pre-existing constitutional problems and, in the case of the knee, related to the incident occurring 40 years ago.”[28]
The applicant’s submissions
[28] Reply at page 9
Mr Parker submits that the evidence shows that Mr Giacalone had an issue with his right knee before his workplace injury. On 6 December 2017, his then general practitioner recorded that he suffered from “chronic arthritis of knuckles and knees”[29]. In Mr Parker’s submission the reference to “knees” is likely a typographical error as there is no other reference to the left knee.
[29] ARD at page 179
Mr Parker submits that the injury in February 2018 was minor and did not prevent
Mr Giacalone from undertaking all of his usual work duties. It was not until 17 August 2018 that he saw his general practitioner complaining of right knee pain and swelling.In contrast to the earlier injury, Mr Parker submits that the injury on 5 September 2018 was significant. It caused immediate severe pain in Mr Giacalone’s right knee, leg and hip, and lower back. He went straight to his doctor. Dr Purser diagnosed a right medial collateral ligament tear. He had ongoing pain, leading Dr Purser to order an MRI and refer him to Dr Tsung. Her notes refer to twisting his left knee as he got out of his car, but his primary claim relates to overuse on account of favouring his right knee.
Mr Parker submits that Mr Giacalone’s statement, and that of his wife, show that he was limping and using a stick following the injury on 5 September 2018. Dr Tsung noted on 29 October 2018 that he had had difficulty weight-bearing since the injury and had some calf wasting on that side. The physiotherapy reports show that, by November 2018, he had an antalgic gait and an excessively dysfunctional and weakening knee.
In Mr Parker’s submission, Mr Giacalone had two problems: a medial meniscal tear and an aggravation of his underlying condition.
Mr Parker submits that Dr McKee confirms the severity of the injury in September 2018 and Mr Giacalone’s increasing reliance on his left leg. Dr McKee agrees with Dr Tsung opinion and explains his disagreement with Dr Robinson.
With respect to Dr Robinson, Mr Parker submits that his fundamental premise was that the right knee was not a result of the workplace injury and the left knee was a pre-existing condition. He does not engage with the concept of consequential condition in the left knee and with the evidence from Mr Giacalone and his treating assessing doctors about overuse. Nor does he engage with why the left knee was previously asymptomatic. Additionally, he appears to understand that the left knee was injured 40 years ago and again on 5 September 2018. His statement that the left knee condition is not related to Mr Giacalone’s employment is bare ipse dixit, and his opinion should not be given weight.
Mr Parker submits that, there being no argument that the proposed left total knee replacement is itself reasonably necessary, Mr Giacalone’s claim should succeed.
The respondent’s submissions
Mr Stockley submits that the doctors on each side have offered largely partisan opinions without much by way of reasoning because they have their views about certain conditions.
Mr Stockley submits that Dr Robinson was grappling with the fact that Mr Giacalone’s right knee was grossly diseased before either workplace injury in 2018, the issue being whether his employment advanced the condition in some way such that the respondent should be liable to pay for the proposed surgery.
Mr Stockley submits that Mr Giacalone’s case is presented on the assumption that, from the time of the injury on 5 September 2018, he suffered such significant symptoms in his right leg that it placed additional stress on his left. However, Mr Stockley submits, we know from
Mr Giacalone’s statement and the history taken by Dr McKee that his work was hard and he undertook active duties. In contrast, following the accident, he was off work. In the circumstances, Mr Stockley submits, it is relevant to ask where the overloading occurred. Mr Stockley submits that the overall load on his body after the injury was less and it cannot be said that the pressure on the left leg was any greater than previously.With respect to Mr Giacalone’s statement, Mr Stockley submits that he does not explain the overuse of his left leg. He does not say, for example, how much walking, standing, or lifting he was doing. Further, Dr McKee gives no information as to why there was more wear and tear than if he had not had the injury.
With respect to Dr Robinson’s reports, Mr Stockley acknowledges that he gives a medical rather than a legal opinion, that osteoarthritis in the right knee does not lead to osteoarthritis in the left, which is not the present issue. However, Mr Stockley submits, the same goes for Dr McKee’s opinion in that he simply states that there was overuse of the left leg without explaining why.
Mr Stockley submits that, even if I accept that there were new symptoms, or previously quiescent symptoms, in the left leg it does not follow that the respondent is liable to pay for the left total knee replacement.
Submissions in reply
In reply, Mr Parker submits that it does not follow, because Mr Giacalone was not at work after 5 September 2018, that there was not overuse of his left leg. Nor is he required to explain what he was actually doing.
Mr Parker refers to the decision in Arquero v Shannons Anti Corrosion Engineers Pty Ltd[30] in which the worker claimed a consequential condition in his left knee as a result of accepted injury to his right because of his altered gait. Deputy President Wood rejected a submission that the worker’s evidence fell short of providing details of what he was doing that placed greater strain on his left knee. She said[31] that submission ignored his evidence that he had difficulty doing such things as housework and walking long distances. She said it was “a common sense proposition” that a person who is not immobilised and who attempts to carry out every day activities would be walking and otherwise using his lower limbs “as a matter of course”.
[30] Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2015] NSWWCCPD 3 (Arquero)
[31] Arquero at [157]
Mr Parker submits that Dr Robinson’s reports go nowhere and all of the evidence points to a finding for Mr Giacalone.
Did Mr Giacalone develop a consequential condition in his left knee?
There is no dispute that Mr Giacalone injured his right knee in February 2018 and on 5 September 2019. I have to determine whether he developed a consequential condition in his left knee such that the respondent is liable to meet the cost of the proposed left total knee replacement.
Mr Giacalone bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[32]; Nguyen v Cosmopolitan Homes[33].
[32] Department of Education and Training v Ireland [2008] NSWWCCPD 134
[33] Nguyen v Cosmopolitan Homes [2008] NSWCA 246
The principles relevant to determining claims involving consequential conditions were discussed by Deputy President Roche in Kumar v Royal Comfort Bedding Ltd[34] where he said[35]:
“By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”
[34] Kumar v Royal Comfort Bedding Ltd [2012] NSWWCCPD 8 (Kumar)
[35] Kumar at [35]
Nor is it necessary for a worker to establish, in a claim for a consequential condition, that he or she developed pathology in the relevant body part, only that the proposed surgery is reasonably necessary “as a result of” the workplace injury.[36]
[36] Kumar at [55]; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan
In Murphy v Allity Management Services Pty Ltd[37] Deputy President Roche said at [57]-[58]:
“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.
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).”
[37] Murphy v Allity Management Services Pty Ltd[2015] NSWWCCPD 49
Mr Giacalone claims that the need for the left total knee replacement is to alleviate the symptoms and pain in his left knee that developed as a result of his altered gait and reliance on his left knee in favour of his injured right knee.
Mr Giacalone’s unchallenged evidence is that, by August 2018 his right knee was swollen and had started to give way. Dr Hewage recorded on 17 August 2018 that he was complaining of right knee pain and swelling.
On 7 September 2018, two days after his fall at work, Dr Purser recorded that Mr Giacalone had acute pain and swelling on the right medial side of the knee. She diagnosed a right medial collateral ligament tear which, she subsequently noted, was confirmed on MRI. Her notes show that, on 14 September 2018 Mr Giacalone continued to have pain and she referred him for physiotherapy and an MRI. The pain continued and, on 24 October 2018 she referred him to Dr Tsung.
There is no challenge to Mr Giacalone’s claim that he twisted his left knee while getting out of the car in November 2018. His claim is corroborated by Dr Purser’s notes. However, as I understand the evidence and the submissions, this incident had little bearing on the progression of the right or left knee conditions.
The evidence shows that the pain in Mr Giacalone’s right knee continued. Despite an initially good response to an injection, Dr Tsung reported on 27 February 2019 that the knee was back to where they started and Mr Giacalone had “constant functional pain” due to his arthritic right knee. By June 2019, he required right total knee replacement.
On 8 April 2019, Dr Purser recorded that Mr Giacalone’s left knee had now become painful, likely as a result of overuse of the right.
There does not appear to be any real argument that Mr Giacalone had an altered gait following the injury on 5 September 2018. Dr Tsung noted, when he first saw Mr Giacalone on 29 October 2018, that he had had difficulty weight-bearing since the fall. He noted “some quads and calf wasting” on the right side and “significant functional limitation” of the knee.
Ms Aitchison reported on 8 November 2018 that Mr Giacalone had “very limited utility of his right knee and aberrant gait and transfers” and, on 27 November 2018, that he had been using a knee brace and stick and was exhibiting “an antalgic gate and fear avoidance behaviours, resulting in an excessively dysfunctional and weakening knee.”
On 2 October 2019, Dr Tsung again noted that Mr Giacalone had “an antalgic gait pattern on the left.”
On 3 February 2020, Dr McKee observed that Mr Giacalone had “a pronounced left-sided antalgic gate, resulting in a slow shuffling walk” and was using a walking stick.
In his report of 29 April 2019, Dr Robinson noted that Mr Giacalone had pain in his left knee “which he relates to increased usage of such” and that his gait was “antalgic in nature with him holding on to objects in order to produce a satisfactory movement”.
There is no evidence to suggest that Mr Giacalone had an antalgic gait before the injury on 5 September 2018. The only suggestion of any issue with his left knee is in Dr Hewage’s note on 6 December 2017 that he had “chronic arthritis of knuckles and knees”. He next saw
Dr Hewage on 17 August 2018 complaining of right knee pain and swelling.Mr Parker submits that, in the context of the evidence as a whole, the reference to knees in Dr Hewage’s note of 6 December 2017 is probably a typographical error. It is impossible to know but, whatever it meant, there is no actual evidence of symptoms in the left knee before 8 April 2019 when Mr Giacalone saw Dr Purser. By that time, he is antalgic gait as a result of the injury to the right knee had been noted over approximately six months.
Dr Purser’s opinion that the symptoms in the left knee were likely caused by overuse of the right is supported by Dr Tsung’s report of 2 October 2019 where he says that, as a result of his right knee treatment, Mr Giacalone had been favouring his left knee and had ongoing symptoms mainly on the lateral joint line as well as centrally. Dr Tsung made the differential diagnosis of a lateral meniscus tear with mechanical instability, likely an acute on chronic tear with worsening propagation since Mr Giacalone had been using the left knee more heavily as his right knee had become more and more dysfunctional leading up to the right knee replacement, and again in the early post-operative period. Although subsequently he noted that the MRI did not show a tear, Dr Tsung did not resile from his opinion that the condition in the left knee was the result of overuse on account of the injury to the right.
Dr McKee agrees with Dr Tsung that, as a result of his right knee injury, Mr Giacalone had been favouring his left knee and had ongoing symptoms. He agreed with Dr Tsung’s differential diagnosis. Although, at the time of his report on 3 February 2020, Dr McKee thought there was no indication for any major left knee surgery, he nevertheless concluded that Mr Giacalone had chronic left knee joint pain and instability, partly due to increasing wear and tear produced by the antalgic limp caused by using his left knee more heavily on account of the increasing dysfunctional right knee joint, before and after the right knee joint replacement.
By the time of his second report, in October 2020, Dr McKee supported Dr Tsung’s proposal for left total knee replacement and said Mr Giacalone’s employment with the respondent materially contributed to the need for the surgery. He explained his reasons by reference to the MRI in October 2019, his clinical examination in February 2020 and his agreement with Dr Tsung’s diagnosis. He explained the basis for his disagreement with Dr Robinson’s opinion that the left knee condition was not work-related, in particular because the pre-existing minor degenerative changes in the left knee joint, had been exacerbated, the work-related injuries having caused acute flare-ups of degenerative changes and tendonopathy which was continuing.
In contrast, Dr Robinson does not engage with the question of the antalgic gait other than to note that Mr Giacalone’s gait was “antalgic in nature with him holding on to objects in order to produce a satisfactory movement”. Despite that observation, which suggests considerable functional imitation, Dr Robinson made no further comment about the significance, if any, of the antalgic gait.
Dr Robinson noted that Mr Giacalone attributed his left knee pain to overuse but offers no opinion as to the reason for the antalgic gait or its relationship, if any, to the workplace injury, or whether he agreed or not with Mr Giacalone’s attribution of his pain to overuse. Having noted there had been minimal investigations to confirm underlying degenerative problems in the left knee, Dr Robinson simply concludes it was not related to the workplace injury.
It is not always clear from Dr Robinson’s reports which knee he is referring to. Moreover, there appears to be some confusion in his reports as to which knee he understood
Mr Giacalone injured in the incident 40 years ago. He took a history that Mr Giacalone had a “severe injury to his right knee” 40 years ago which, Dr Robinson said, had resulted in severe degenerative change in the knee.Then, in his supplementary report in response to a question about the lumbar spine, right and left knees, Dr Robinson said the left knee related to pre-existing problems. He referred to the lumbar spine and then “in the case of the knee” said it related to the incident 40 years ago. It appears from his report that he is referring to the left knee, but it is not clear. If he was in fact referring to the right knee, it remains that he simply states that the left knee condition related to pre-existing problems. Dr Robinson does not engage with the question of whether Mr Giacalone developed a consequential condition as a result of the injury to his right knee.
In my view, these difficulties with Dr Robinson’s reports undermine the weight they should be given. I prefer the consistent views of Dr Tsung and Dr McKee, which are supported by the general practitioner and Ms Aitchison’s reports, that the need for surgery to the left knee was as a result of overuse of the knee on account of the injury to the right.
I do not accept, as Mr Stockley submits, that Mr Giacalone has failed to describe the activities that he undertook that led to overuse of his left knee or that, because he was no longer working after September 2018, he could not have been putting more load on his left knee. Mr Giacalone has not suggested that he was immobilised after the injury in September 2018. There are references throughout the reports, including Dr Robinson’s, to him walking with a stick, having difficulty mobilising, and having to go up and downstairs carefully. As Deputy President Wood noted in Arquero, it is common sense that he was using the left more than the right following the injury in September 2018.
Considering all of the evidence and applying the commonsense test of causation in Kooragang, I am satisfied that Mr Giacalone has discharged his onus to establish, on the balance of probabilities, that he developed a consequential condition in his left as a result of the accepted injury to his right knee. I am satisfied that, as a result of his workplace injuries, in particular the injury on 5 September 2018, Mr Giacalone developed an antalgic gate and overuse of his left leg. I am satisfied that his accepted injury materially contributed to the need for the total knee replacement proposed by Dr Tsung.
Is the proposed left total knee replacement reasonably necessary as a result of
Mr Giacalone’s accepted injury?
The respondent has not suggested that the proposed total left knee replacement is not reasonably necessary treatment for Mr Giacalone’s left knee condition, only that it is not reasonably necessary as a result of his injury.
Dr Tsung supports the need for the left total knee replacement. Dr McKee supports his opinion. The only basis of Dr Robinson’s opinion is that it is not reasonably necessary because it is unrelated to the workplace injury.
I am satisfied that the total left knee replacement proposed by Dr Tsung is reasonably necessary treatment as a result of Mr Giacalone’s accepted injury. I therefore make the orders set out in the attached Certificate of Determination.
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