Gibson v Austcorp Executive Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gibson v Austcorp Executive Pty Ltd [2021] NSWPIC 256
APPLICANT:	Paul David Gibson
RESPONDENT:	Austcorp Executive Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	21 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for proposed total knee replacement surgery; whether the requirement for the medically necessary surgery was brought about by an accepted injury by way of aggravation of underlying left knee osteoarthritis, or whether the effects of the aggravation have passed; Held- the applicant had been actively engaged in heavy physical work for many years before the injury at work in November 2019; although the applicant had complained of some left knee symptoms three times in the 12 years leading up to the injury, he was able to persist in his physically demanding employment until the injury at issue; the applicant’s post-injury symptoms had never settled and have worsened over time; the injury at issue rendered a previously functional left knee dysfunctional, and it is that dysfunction which has brought about the requirement for surgery; there is no issue the proposed surgery is medically necessary; the proposed surgery is reasonably necessary as a result of the workplace injury; the argument the effects of the aggravation had passed is one commonly presented before the Commission, however, absent an explanation as to why the aggravation has passed in the specific circumstances of any given case, it is a difficult argument to accept, particularly when, as with this case, the applicant’s symptoms at no point lessened after the injury; the respondent is to pay the costs of and incidental to the proposed left total knee replacement surgery.
DETERMINATIONS MADE:	1. The applicant suffered an injury to his left knee in the course of his employment with the respondent on 25 November 2019. 2. As a result of the injury referred to in (1) above, the applicant requires a left total knee replacement as indicated by Dr Gomes. 3. The total knee replacement is reasonably necessary as a result of the injury referred to in (1) above. 4. The respondent is to pay the costs of and incidental to the proposed total left knee replacement.

STATEMENT OF REASONS

BACKGROUND

On 25 November 2019, in the course of his employment with Austcorp Executive Pty Ltd (the respondent), Paul David Gibson (the applicant) suffered a twisting injury to his left knee which aggravated pre-existing osteoarthritis in that body part.
Following the injury at issue, the applicant underwent lengthy conservative treatment to no effect and his symptoms have not resolved since the injury took place.
The parties agree the applicant requires a total left knee replacement, however, the respondent denies liability on the basis that the applicant’s underlying osteoarthritis has brought about the need for surgery, as opposed to the accepted workplace injury.
The respondent alleges the effect of any aggravation to the applicant’s underlying osteoarthritis has passed, and that he would have required the left total knee replacement in any event.

ISSUE FOR DETERMINATION

The parties agree that the only issue for determination is whether the total knee replacement is reasonably necessary as a result of the workplace injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 16 July 2021. I am satisfied the parties have used their best endeavours to reach a resolution of the matter, however, they have been unable to do so.

At the hearing, Ms E Grotte of counsel appeared for the applicant, instructed by
Ms L Pearson, solicitor. Mr S McMahon of Counsel appeared for the respondent, instructed by Mr K Maakasa.

EVIDENCE

Documentary evidence

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

(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    The applicant’s Application to Admit Late Documents (AALD) dated 7 July 2021 and attached documents

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed surgery is reasonably necessary

There is no issue either that the applicant suffered a workplace injury on 25 November 2019, or that the surgery proposed by Dr Gomes, treating orthopaedic surgeon is a medical necessity. The only question is whether the requirement for the surgery was brought about by the workplace injury in question.

Although the question in contentious cases surrounding proposed medical treatment is always whether it is reasonably necessary, the real issue in this case is one of causation. That is, the medical need for the knee replacement surgery is uncontroversial. To that extent, it is not necessary in this matter to delve into the various factors which determine whether treatment is reasonably necessary as set out in decisions such as Diab v NRMA (2014) NSW WCCPD 72 or Bartolo v Western Sydney Area Health Service (1997) 14 NSW CCR 233. Rather, the question is whether the need for what is accepted as appropriate medical treatment has been brought about by the workplace injury.

The applicant bears the onus of proving that the requirement for surgery is work related. In determining questions of causation, the Commission must apply a common - sense test of causation, as set out by Kirby P (as he then was) in the oft-cited passage in Kooragang Cement Pty Ltd v Bates (1994) 35 NSW LR 452 (Kooragang). That is, it is necessary to undertake a common-sense evaluation of the causal chain to determine whether the applicant’s injury at work has brought about the need for the surgery.
In order to succeed, it is not necessary for the applicant to show that the injury was the whole or predominant cause of the requirement for surgery. In Murphy V Allity Management Services Pty Ltd [2015] NSW WCCPD 49, Roche DP dealt with a matter where a worker suffered an injury in the cause of their employment, but also a non-related fall in a supermarket. At [57]-[58], the Deputy President noted that even if the subsequent fall at the supermarket contributed to the need for surgery, such a contribution to the need for surgery would not necessarily defeat the worker’s claim. A condition can have multiple causes and the work injury does not have to be does not have to be the only, or even a substantial cause of the need for the relevant treatment before the cost of it is recoverable under section 60 of the Worker’s Compensation at 1987 (the 1987 Act).
In this matter, I am satisfied on the balance of probabilities that the requirement for surgery was brought about by the workplace injury, for the following reasons.
There was no issue that the applicant suffered from pre-existing osteoarthritis in his left knee. That much is clear from an examination of the clinical records of his general practitioner. Those records reveal a complaint in 2007 of left knee pain, a further complaint in 2009 and yet another in 2017. The complaint in 2009 led to a referral to an orthopaedic surgeon for treatment, however, it appears the applicant did not act on that referral.
The respondent submitted it was significant that the applicant was prescribed Arthrexin over a substantial period of time, at least in part due to problems with his left knee. Whilst it appears the applicant did take Arthrexin for an extended period, it is notable he made complaints to his general practitioner regarding soreness to various body parts and that he also suffered from gout, a condition for which Arthrexin is also prescribed.
The applicant’s employment with the respondent involved heavy physical work. He regularly carried out yard and garden maintenance and was able to do so effectively on full time duties until the time of his injury in 2019. That evidence from the applicant is uncontested.
When the applicant suffered his injury in November 2019, he consulted his general practitioner who immediately referred him to treating surgeon Dr Gomes. Dr Gomes noted the applicant was using a whipper snipper and suffered a twisting injury to his left knee when turning to the right, causing him to fall to the ground. He describes significant knee discomfort and difficulty walking since that time. Upon examination, Dr Gomes noted a meniscal tear to the left knee and, over the course of many months since the injury indicated the applicant’s symptoms have basically not settled since the injury in issue.
Dr Gomes noted the history of some prior knee discomfort and indicated there was pre-existing osteoarthritis in the left knee. As a treating doctor, it is therefore apparent Dr Gomes is aware of the pre-existing problems and has taken them into account in formulating both is opinion and the proposed treatment regime.
Dr Gomes stated that the loss of meniscal function had led to increased stresses in the medial compartment of the knee which “has taken a functional arthritic left knee, to one that is swollen, painful and has poor function.” Dr Gomes readily stated that the applicant’s employment did not cause the tricompartmental osteoarthritis in his left knee, but rather aggravated that osteoarthritis and rendered a functional knee dysfunctional. He therefore opined the work injury was the main contributing factor to the aggravation of the underlying condition in the applicant’s knee.
Dr Gomes’ opinion is supported by Dr Millons, Independent Medical Examiner (IME) who provided two reports dated 5 November 2020 and 30 June 2020 respectively. Dr Millions, consistent with Dr Gomes and the GP clinical records, noted that the applicant’s symptoms have not settled since the injury in question and the injury therefore brought about the need for the proposed surgery.
The respondent’s IME, Dr Harrington indicated that any workplace aggravation to the applicant’s left knee caused by the injury in issue would have abated within three months. This is an opinion often expressed in matters such as this before the Commission, however, absent some explanation as to why it is that the aggravation would have abated, it is difficult to accept that view on face value when there is uncontested evidence the applicant’s symptoms both arose as a result of the workplace incident, and have not abated since.
Moreover, in this case the contemporaneous evidence does not support Dr Harrington’s opinion. The GP clinical records clearly show multiple visits after November 2019 by the applicant in which he stated his symptoms persisted. Such complaints are, in my opinion, consistent with the view put forward by Dr Gomes that the applicant’s left knee was functional before the injury at issue, however, after that injury it ceased to be so. That is, in my opinion, as a result of the workplace injury.
The necessity to undergo any medical treatment is brought about by the symptoms suffered by the patient. It is trite to make that observation, however, as noted by Dr Millons, it is not unusual for people to have markedly arthritic joints yet continue to function at a high level. What has made the applicant’s left knee dysfunctional is the workplace injury.
Whilst Dr Harrington indicates that the applicant would have required a total knee replacement in any event, it is the injury at issue which has rendered the knee so symptomatic as to require that surgery. The fact the applicant’s knee may have needed replacement many years or decades down the track does not detract from the injury at work being a causative factor in the requirement for surgery at the present time.
Adopting a common-sense approach, I note the applicant was working in a physically demanding job for many years notwithstanding the presence of osteoarthritic changes in his left knee. He was able to do so with the occasional visit to his general practitioner and prescription of analgesic medication. Otherwise, he was able to cope well with not only work but the activities of daily living. Once he suffered the injury at work, that changed. His symptoms have persisted, and his knee has never at any time returned to the level of functioning it exhibited before the injury in question. Those worsening symptoms have brought about the need for the proposed surgery.

In the circumstances, I am comfortably satisfied on the balance of probabilities that the injury in the course of the applicant’s employment on 25 November 2019 has brought about the need for the total knee replacement, which both parties agree is a medical necessity.
As a result, in my view the proposed total knee replacement surgery to be carried out by Dr Gomes is reasonably necessary as a result of the applicant’s work place injury and the Commission will therefore make the findings and orders as set out on page 1 of the Certificate of Determination.

[2021] NSWPIC 256

21 July 2021