Goodman v Blacktown City Council
[2022] NSWPIC 294
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Goodman v Blacktown City Council [2022] NSWPIC 294 |
| APPLICANT: | Mark Anthony George Goodman |
| RESPONDENT: | Blacktown City Council |
| Member: | Gaius Whiffin |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for treatment expenses (a total replacement arthroplasty of the left knee) pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); respondent disputes treatment reasonably necessary and disputes treatment is as a result of an accepted left knee injury; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the surgery proposed is reasonably necessary medical treatment as a result of the left knee injury; Rose v Health Commission (NSW); Diab v NRMA; Murphy v Allity Management Services Pty Limited considered; Held- the surgery proposed for the applicant is reasonably necessary medical treatment as a result of a left knee injury which arose out of or in the course of the applicant’s employment; there was a material contribution between the injury and the surgery; respondent ordered to pay for the costs of and incidental to the surgery pursuant to section 60 of the 1987 Act. |
determinations made: | 1. 1. The surgery proposed for the applicant by Dr Woodbridge (a total replacement arthroplasty of the left knee) as referred to in his 16 March 2022 quotation, is reasonably necessary medical treatment as a result of the applicant’s left knee injury, which arose out of or in the course of his employment. |
| ORDERS MADE: | 1. 2. The respondent is to pay for the costs of and incidental to the surgery (a total replacement arthroplasty of the left knee) proposed for the applicant by Dr Woodbridge in his 16 March 2022 quotation, pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
1. Mark Goodman (the applicant) is 57 years old. He has been employed by Blacktown City Council (the respondent) since 2017, but he last worked for it on 21 June 2021. He has worked for it as a street cleaning operator.
2. He injured his left knee during his employment with the respondent. He alleges and pleads that the injury arose as a result of the general nature of his employment duties, as well as specific incidents which occurred on 24 March 2021, a date in May 2021, and 21 June 2021. I will often refer to these three incidents in these reasons as the ‘2021 incidents’.
3. The respondent has accepted that the applicant has sustained a left knee injury, which arose out of or in the course of his employment pursuant to section 4 of the Workers Compensation Act 1987 (the 1987 Act), and it has also accepted that his employment was a substantial contributing factor to the injury pursuant to section 9A of the 1987 Act. The respondent continues to make weekly compensation payments to the applicant as a result of his incapacity for work since 21 June 2021.
4. The applicant’s current treating specialist, Dr Woodbridge, has recommended to the applicant that he undergo surgery to treat the left knee injury. The doctor has recommended that he undergo a total replacement arthroplasty of the left knee.
5. The applicant initially requested that the respondent approve the costs involved in left knee unicompartmental arthroplasty surgery recommended to him by Dr Brighton.
6. The respondent issued a notice denying liability for that surgery, under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 20 July 2021. The respondent issued a further notice on 1 February 2021 [sic - should read 1 February 2022] following a review request made pursuant to section 287A of the 1998 Act. By that notice, it maintained its decision denying liability.
7. By way of an Application to Resolve a Dispute (ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the surgery proposed by Dr Woodbridge in accordance with section 60 of the 1987 Act.
8. The respondent has confirmed, both during the teleconference held by the Commission on 14 April 2022 and during the conciliation/arbitration held by the Commission on 10 June 2022, that it is able to meet the applicant’s claim in relation to the surgery proposed by Dr Woodbridge in the current Commission proceedings. It has also confirmed that it denies liability for that surgery.
ISSUES FOR DETERMINATION
9. The parties therefore agree that the issue in dispute in the Commission proceedings is:
a. (a) whether the surgery proposed by Dr Woodbridge is reasonably necessary medical treatment as a result of the injury to the applicant’s left knee, which arose out of or in the course of his employment with the respondent.
PROCEDURE BEFORE THE COMMISSION
a.10. 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.
b.11. A conciliation conference was held in the dispute on 10 June 2022. On that occasion, Mr Morgan of counsel appeared for the applicant instructed by Ms Cugalj, and Ms Compton of counsel appeared for the respondent, instructed by Mr Veasey. As a resolution of the dispute was not possible during the conciliation conference, the dispute proceeded to an arbitration hearing before me.
EVIDENCE
Documentary evidence
a.12. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) the ARD and attached documents;
c. (b) the respondent’s Reply (Reply) and attached documents;
d. (c) the applicant’s Application to Admit Late Documents (applicant’s AALD) lodged 3 June 2022 and attached documents - admitted with the consent of the respondent, and
e. (d) the respondent’s Application to Admit Late Documents (respondent’s AALD) lodged 6 June 2022 and attached documents – admitted with the consent of the applicant.
Oral evidence
a.13. There was no oral evidence called at the arbitration hearing.
Applicant’s evidence
a.14. The applicant has provided a brief signed statement dated 21 January 2022 (page 1 of the ARD).
b.15. His work with the respondent required him to collect very large plastic bins from parks and other public spaces, and to drag them from their positions over kerbs, and to then place them so that they could be lifted by a mechanical arm and emptied into a garbage truck. The work involved constant twisting and turning in order to manoeuvre the bins. The bins were often very heavy, and in dragging them, he would slip over on kerbs or on wet grass "multiple times a day".
c.16. On 24 March 2021, he jarred his left knee when, while dragging a bin, he slipped on a kerb. He did not seek any medical treatment, but continued to work for the respondent with ongoing left knee pain.
d.17. A very similar incident occurred on a date in May 2021, when he stepped off a kerb and jarred his left knee while twisting at the same time. Again, he did not seek any medical treatment, but continued to work for the respondent with ongoing left knee pain.
e.18. Then, on 21 June 2021, he twisted and jarred his left knee again when he slipped from a kerb. He was in significant pain following this incident and could not continue to work. He sought treatment from his general practitioner and was referred to Dr Brighton.
f.19. The applicant states that prior to 24 March 2021, he had never experienced any problems with either of his knees.
g.20. Dr Woodbridge’s quotation for the proposed total replacement arthroplasty of the left knee surgery is to be found at page 1 of the applicant’s AALD. The doctor provides an estimate of $6,225.00.
h.21. Dr Woodbridge has also provided a report dated 15 December 2021 (page 28 of the ARD). The doctor takes a history of the applicant sustaining a twisting injury to his left knee whilst moving a heavy garbage bin, and having ongoing pain in the medial aspect of the knee since. He had also developed symptoms in the anterior and lateral aspects of the knee. Imaging had demonstrated advanced osteoarthritis and tricompartmental changes in the knee joint.
22. On examination, the doctor found:
“Examination today shows mild varus alignment of the left knee. There is an antalgic gait pattern. He has a range of motion of 10-120 degrees. There is tenderness in the medial compartment and some mild tenderness of the lateral aspect of the patellofemoral joint. There is some discomfort with loading all compartments.”
a.23. The doctor concluded:
“Mark has quite advanced osteoarthritis of the left knee. I think this degenerative change was aggravated by his twisting injury at work. I do not think that any form of arthroscopic surgery will help him. Given that Mark is not responding to physiotherapy and simple analgesia, as well as a significant rehab period, the best chance of Mark returning to a good level of function would be with a total knee replacement. I note that a unicompartmental knee replacement has been recommended. There are certainly pros and cons to both, but with the degenerative changes that I can see affecting the other compartments of the knee, the most reliable procedure would be a total knee replacement.”
a.24. It was Dr Brighton who had initially recommended the unicompartmental knee replacement. That doctor’s report in this regard dated 9 July 2021 is found at page 20 of the ARD.
b.25. In the report, the doctor took a history of the applicant in May 2021 suffering "an episode of acute left knee pain twisting to manoeuvre a large garbage receptacle to load into the truck". He had since had persisting pain at the inner aspect of the knee. He then had a similar episode of acute left knee pain on 21 June 2021.
c.26. On examination, the doctor found swelling and a “few degrees of fixed flexion”. The applicant walked with a limp favouring his left knee. Imaging of the left knee showed complete loss of joint space in the medial compartment as well as some changes in the lateral and patellofemoral compartments.
d.27. The doctor concluded:
“Mark's work injury has unmasked the problem of developing arthritis which has probably been coming on for much longer. The acute injury may have given rise to a bone bruise (or even a degenerative tear of the meniscus) as a result of stress transferred through compromised cartilage and he can expect some recovery with nonoperative measures, but only a medial unicompartmental knee arthroplasty will fix the problem reliably and durably.”
a.28. The applicant’s solicitors arranged for him to be examined by Dr Courtenay, and the doctor prepared a report dated 10 December 2021 (page 14 of the ARD).
b.29. The doctor took a history that the applicant's work with the respondent involved removing 240 litre bins from parks and other facilities. The work involved moving the bins across large areas. The doctor recorded specific incidents in March 2021, in May 2021, and on 21 June 2021, when the applicant jarred his left knee.
c.30. The doctor also took a history of the applicant sustaining no significant left knee injuries in the past. The doctor noted that the applicant had in this regard “always undertaken labour intensive type work”.
d.31. Following 21 June 2021, the applicant had been referred to Dr Brighton, who had recommended a unicompartmental left knee replacement. This surgery however had not taken place, and instead, the applicant had relied for treatment upon physiotherapy (which had “not made a huge amount of difference”) and medication.
e.32. The doctor recorded that the applicant is in constant pain whenever he walks, especially over uneven ground. He had sleep disturbance, he was unable to drive long distances, and he was unable to undertake exercise.
f.33. The doctor examined the applicant by video conference, but could confirm that he was only able to show 90° of left knee flexion. He had a varus alignment of the left knee when weight-bearing, and there appeared to be a small but consistent degree of lateral thrust in the left knee when he was marking time.
g.34. The doctor provided a helpful summary of his opinion:
“Mr Goodman was working in quite a heavy physical type employment. He had been having some issues with his left knee, but there were no injuries that he can relate, and certainly given that he was doing this heavy work, not only with Blacktown Council but with Botany Council previously, he has a long history of being able to perform physical work. It was only due to the three specific injuries in 2021 that finally his left knee came to a point where he could not continue and subsequently he now has very symptomatic osteoarthritis with trouble walking even relatively short distances, and trouble at night.”
a.35. The doctor diagnosed tricompartmental osteoarthritis of the left knee, and in relation to causation, opined that the nature of his work was the main contributing factor to the aggravation and acceleration of the arthritic process in his left knee joint. He then stated:
“The writer definitely considers ‘the aforementioned incidents and/or the nature and conditions of his employment to represent a substantial contributing factor to the condition’. Even though he had not had symptomatic osteoarthritis in the past, and the writer does point out that this was true because he was working full time and had been undertaking this heavy level of employment for years. He has flared the knee, and the writer suspects he had meniscal tears since the first injury but ultimately it has now become a major problem due to osteoarthritis and effectively the final injury has made the knee chronically painful, swollen and functionally restrictive.”
a.36. The doctor finally advised that in his opinion, a unicompartmental left knee replacement should not be performed upon the applicant. Such a procedure was likely to require further surgery "much sooner than normal" due to the applicant's tricompartmental osteoarthritis. The doctor recommended a total left knee replacement which he believed would have a less than 5% chance of re-operation at 10 years.
b.37. The ARD also contains a radiological report, some general practitioner referrals, and the applicant’s clinical notes from Lomond Crescent Medical Practice. I will refer to extracts from these records if I am specifically referred to them in submissions.
Respondent’s evidence
a.38. The respondent relies upon the opinions of Dr Ridhalgh, who has provided three reports, but who only examined the applicant once by video conference on 30 July 2021.
b.39. In his 4 August 2021 report (page 8 of the Reply), the doctor took a history from the applicant of "three episodes of knee troubles dating from early May until 21 June 2021". He twisted his left knee in the first two episodes, and his foot slipped off a gutter in the third episode, causing pain on the medial aspect of the left knee. He had not worked since 21 June 2021. He denied having any previous problems with his left knee.
c.40. The doctor did not take any significant history regarding the nature of the applicant's work.
d.41. The doctor recorded the applicant's complaints of pain on the medial aspect of the left knee which was “always there”. The pain was relieved by rest and was worse with sudden movement. The applicant had difficulty going upstairs and while sleeping. There was clicking of the knee, the knee was swollen, and the applicant had had "collapsed episodes". The applicant was being treated with medication and physiotherapy.
e.42. On physical examination, the doctor found localised pain to the medial aspect of the left knee, and knee flexion of 10° to 110°. The doctor reviewed radiology confirming tricompartmental osteoarthritis of the left knee, moderate to high grade, and worse within the medial compartment.
f.43. The doctor described the applicant as suffering "an acute exacerbation of osteoarthritis of the knee from 21 June 2020 [sic]". He also referred to the applicant's employment with the respondent as causing "an acute aggravation of his underlying knee osteoarthritis". He opined a guarded prognosis for the "work-related injury". He concluded:
“Essentially Mr Goodman was asymptomatic prior to the accident that occurred whilst in the course of his employment.... I believe he has had an acute exacerbation of his underlying degenerative disease. The disease was very advanced and it was likely that he would have required surgery around this time in his life with or without the injuries that occurred at work."
a.44. The doctor was asked to opine regarding the unicompartmental left knee replacement surgery initially suggested by Dr Brighton. The doctor opined that the surgery was neither reasonably necessary nor “necessarily” resulting from the 21 June 2021 injury. The doctor then however went on to review Dr Brighton's quotation for the surgery and agreed "with the diagnosis of the associated treatment and costing". The doctor also stated:
“Dr Brighton is proposing the operation for advanced degenerative disease of the knee. This was not the injury that occurred. He has had an acute exacerbation and as such the exacerbation should decrease."
a.45. In his 9 February 2022 report (page 15 of the Reply), the doctor reviewed Dr Courtenay’s report. He essentially agreed with Dr Courtenay’s view as to the surgery required by the applicant, stating:
“If Mr Goodman has failed non-operative treatment then knee replacement is not an unreasonable procedure for him. However, he is only 57 years of age and if he continues to work as a street cleaning operator then he is likely to require revision knee replacement in a period of 10 to 15 years, with furthermore extensive surgery."
a.46. The doctor then provided opinions that he found it difficult to believe that the applicant was asymptomatic before the 2021 incidents, and that he found the incidents as quite trivial in nature. He believed that the acute exacerbations that had been sustained following the incidents had settled and become "superseded by the underlying condition of osteoarthritis of his knee".
b.47. In his 3 June 2022 report (page 1 of the respondent’s AALD), the doctor essentially maintained his previous opinions upon being questioned further by the solicitors for the respondent. He thought it was "rare for an individual to present with advanced degenerative change in the knee and no symptoms or prior injury whatsoever". He maintained that the applicant's incidents in 2021 were trivial in nature and more of a "strain and sprain". He concluded:
“The natural history of what happens with an arthritic knee that has a minor or trivial accident is that it causes an acute exacerbation of the pain. This pain settles usually over a period of 4 to 6 weeks."
a.48. In the respondent’s AALD, there are also some clinical notes from Lomond Crescent Medical Practice included (from page 4). I will refer to extracts from these notes if I am specifically referred to them in submissions.
Applicant’s submissions
a.49. The applicant’s submissions have been recorded and I will not repeat them in detail.
b.50. The applicant submits that when reviewing the evidence of himself, Dr Brighton, Dr Woodbridge, and Dr Courtenay, I would have no difficulty accepting that the surgery proposed by Dr Woodbridge was both reasonably necessary and a result of the applicant’s work injury. The three doctors are consistent in their opinion as to the causation of the applicant’s left knee injury. They have been provided with consistent histories from the applicant.
c.51. There is no evidence to suggest that the applicant was suffering from any pre-existing symptomatic condition in his left knee, or that his work was not physically demanding. The fact that he was able to perform this work without restriction prior to March 2021 is significant, as is the fact that he has not been able to perform the work since 21 June 2021. The applicant’s statement should be accepted in this regard, and I do so.
d.52. The applicant specifically refers to Dr Brighton’s causation explanation (see paragraph 27 above) and Dr Courtenay’s causation explanation (see paragraph 35 above).
e.53. The applicant submits that the proposed surgery by Dr Woodbridge is the reasonably necessary surgery required by the applicant. Although Dr Brighton initially proposed a unicompartmental left knee replacement, a total knee replacement has now been agreed upon by both Drs Woodbridge and Courtenay, as well as by Dr Ridhalgh. The costs proposed by Dr Woodbridge are in fact reasonably conservative, and the applicant’s need for the surgery complies with the criteria outlined in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab).
f.54. In dealing with the causation opinion of Dr Ridhalgh, the applicant points to the following:
g. (a) The opinion lacks substance in that it does not explain why he accepted that the incidents in 2021 were acute exacerbations which had since settled, on a background of the applicant’s ongoing symptoms and inability to work.
h. (b) The opinion was not clarified by the doctor, even though three reports were requested from him by the solicitors for the respondent.
i. (c) The opinion is inconsistent especially as the doctor opines that if the applicant continues doing the work that he is doing, he is likely to require revision knee replacement surgery in the future – yet the doctor sees no causation between that type of work and his current need for surgery.
j. (d) In considering that the surgery required by the applicant was due to his underlying condition, the doctor did not take into account the fact that the applicant did not require the surgery until he had sustained the incidents in 2021.
Respondent’s submissions
a.55. The respondent’s submissions have been recorded and I will not repeat them in detail.
b.56. The respondent submits that Dr Ridhalgh’s opinion should be accepted. The surgery proposed by Dr Woodbridge is to treat the applicant’s underlying condition of moderate to high grade tricompartmental osteoarthritis. The effects of the exacerbations of that condition by the applicant’s 2021 incidents have now ceased. Drs Brighton and Courtenay do not sufficiently deal with how the condition has been aggravated on an ongoing basis. Dr Woodbridge also does not provide any basis for his opinion as to the aggravation of the applicant’s underlying condition.
c.57. The foundation for the opinions provided by the doctors upon whom the applicant relies has not been sufficiently given.
d.58. The respondent criticises the evidence in the applicant’s statement as being insufficient to explain the type and nature of his work. There were no details as to the size or weight of the bins involved in the 2021 incidents.
e.59. The respondent also criticises Dr Courtenay’s report as failing to differentiate between the work that the applicant performed for the respondent, and the work that he performed for previous employers, when opining that the nature and conditions of the applicant’s employment (as well as the 2021 incidents) substantially contributed to his need for a left total knee replacement.
f.60. In the respondent’s submissions, it seemed to concede that a left total knee replacement was reasonable, but not necessary as a result of a work injury. However, the respondent also raised the issue as to whether any evidence had been provided as to the failure of non-operative treatment.
FINDINGS AND REASONS
Whether the surgery proposed by Dr Woodbridge is reasonably necessary medical treatment as a result of the injury to the applicant’s left knee, which arose out of or in the course of his employment with the respondent
a.61. Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
a.62. The first question to therefore determine is whether the surgery proposed by Dr Woodbridge is reasonably necessary treatment.
b.63. The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), where his Honour stated:
“3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
a.64. In Diab, Roche DP considered Rose and concluded:
“88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
•• (a) the appropriateness of the particular treatment;
•• (b) the availability of alternative treatment, and its potential effectiveness;
•• (c) the cost of the treatment;
•• (d) the actual or potential effectiveness of the treatment, and
•• (e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
• 89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
a.65. In relation to the left total knee replacement surgery proposed by Dr Woodbridge, I accept the submissions made by the applicant as to that surgery being reasonably necessary.
b.66. In considering the matters referred to in Rose and Diab, I find:
c. (a) The surgery proposed by Dr Woodbridge is appropriate treatment for the applicant’s left knee symptoms – this is clearly the opinion of both Drs Woodbridge and Courtenay, and Dr Ridhalgh seems to agree (although his opinion is that the need for the surgery is the applicant’s underlying tricompartmental osteoarthritis rather than any work aggravation of that condition).
d. (b) The only medical evidence suggesting any alternative treatment is the initial evidence from Dr Brighton who believed that a unicompartmental left knee replacement would be sufficient – it is to be noted in this regard however that Dr Brighton only consulted with the applicant within three weeks of his 21 June 2021 incident – since then, Drs Woodbridge, Courtenay and Ridhalgh have considered the applicant’s ongoing symptoms as well as the relevant radiology, and they have all concluded that the surgery needed by the applicant is a total left knee replacement, rather than a unicompartmental left knee replacement - the respondent makes no submission that the appropriate surgery for the applicant is a unicompartmental left knee replacement, although it does submit that no evidence has been provided as to the failure of non-operative treatment – I do not agree with this submission as the applicant has attempted treatment with physiotherapy and medication, yet still remains with significant symptoms and work incapacity - Dr Woodbridge specifically notes (see paragraph 23 above) that the applicant had obtained no relief through physiotherapy, analgesia, or a significant rehabilitation period.
e. (c) The costs of the surgery cannot be said to be unreasonable or prohibitive having regard to the left knee symptoms that the applicant has experienced since 21 June 2021, and his inability to work since then – in this regard, the respondent’s submissions did not quibble with the costs of the surgery, and I accept the applicant’s submission that the costs seemed to be relatively conservative.
f. (d) The overwhelming evidence from Drs Woodbridge, Courtenay, and Ridhalgh is that the only effective treatment for the applicant is a left total knee replacement.
g. (e) The proposed surgery has acceptance by medical experts as being appropriate and as likely to be effective - in this regard, I again rely upon the opinions from three orthopaedic surgeons, being Drs Woodbridge, Courtenay, and Ridhalgh.
h.67. It is now necessary to consider whether there is a material contribution between the injury to the applicant’s left knee which arose out of in the course of his employment with the respondent and the surgery proposed by Dr Woodbridge.
68. In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]. That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
a.69. I have no difficulty in concluding that there is the necessary material contribution in this regard, based upon the opinions which I accept from Drs Woodbridge, Courtenay, and Brighton, as well as the applicant’s unchallenged evidence in his statements.
b.70. I prefer that evidence to the opinions expressed by Dr Ridhalgh.
c.71. I reject the submission of the respondent that there is insufficient evidence as to the heavy nature of the applicant’s work with it. The applicant's statement (see paragraph 15 above) provides confirmation as to the heavy nature of the work, and Dr Courtenay in particular obtains similar information (see paragraph 29 above).
d.72. I accept the applicant’s evidence that his left knee was asymptomatic prior to the 2021 incidents and I find this evidence to be consistent with his ability to perform the heavy nature of his work with the respondent prior to then. I also accept his evidence that since 21 June 2021, he has been unable to perform that work due to his ongoing and consistent pain and symptoms in his left knee.
e.73. In those circumstances, I do not believe that Dr Ridhalgh adequately explains his opinion that the effects of the acute exacerbations of the applicant’s osteoarthritis condition which he found occurred with the 2021 incidents, have ceased. The applicant had no left knee symptoms prior to the incidents, and has had consistent symptoms since.
f.74. The doctor states that the pain from such incidents usually (emphasis added) settles in four to six weeks (see paragraph 47 above) and that the applicant's exacerbation should (emphasis added) decrease (see paragraph 44 above). The doctor has expressed speculative opinions in this regard which do not equate with the reality that I have found that the applicant’s pain and symptoms have not settled or decreased. The speculative nature of Dr Ridhalgh's evidence is also apparent when he opined that (see paragraph 44 above) the surgery proposed initially by Dr Brighton did not necessarily (emphasis added) result from the applicant's 21 June 2021 injury.
g.75. I also find Dr Ridhalgh’s opinions to be infected by error, as:
h. (a) He finds it hard to accept that the applicant did not have left knee symptoms prior to the 2021 incidents - there is however no evidence whatsoever as to any symptoms in this regard, and I accept the evidence of the applicant that he did not have any such symptoms.
i. (b) He finds the 2021 incidents to be trivial - I reject this description having regard to the symptomatology experienced by the applicant in his left knee since the incidents occurred - I also find the history obtained by the doctor of the incidents to be inadequate compared with the history obtained specifically by Dr Courtenay – indeed, Dr Ridhalgh does not obtain a detailed history regarding the nature of the applicant’s work with the respondent, and obtains a history of the applicant’s three 2021 incidents occurring in May 2021 and on 21 June 2021, rather than on 24 March 2021, in May 2021, and on 21 June 2021.
j.76. As a result, Dr Ridhalgh does not provide any opinion regarding whether the general nature of the applicant’s employment with the respondent in any way contributed to his left knee condition.
k.77. I further find Dr Ridhalgh’s opinion to be inconsistent especially in relation to the following:
l. (a) In his initial report, he provided a guarded prognosis for the applicant's "work-related injury" (see paragraph 43 above).
m. (b) In his second report, he seemed to accept the aggravating nature of the applicant's employment as a street cleaning operator to his left knee condition, by opining that if he continued to perform that employment, he would likely require revision replacement left knee surgery in a period of 10 to 15 years (see paragraph 45 above).
n.78. In contrast, I find the opinions of Drs Brighton, Courtenay, and Woodbridge all explain the material contribution necessary between the left knee injury suffered by the applicant as a result of the 2021 incidents (as well as the general nature of his employment duties in the opinion of Dr Courtenay) and Dr Woodbridge’s proposed surgery.
o.79. All three doctors opine that the applicant’s significant left knee osteoarthritis has been affected by his work, so that surgery is necessary to be performed upon him.
p.80. Dr Brighton refers (see paragraph 27 above) to the osteoarthritis as being "unmasked" by the "work injury" (which in the context of his report I find to be the 21 June 2021 incident as well as the May 2021 incident), and he then explains that the mechanism of the injury was consistent with “stress transferred through compromised cartilage”. Dr Woodbridge also (see paragraph 23 above) refers to the applicant’s left knee advanced osteoarthritis as having been “aggravated by his twisting injury at work”.
q.81. In my opinion, Dr Courtenay provides the most comprehensive opinion regarding the effect that the applicant’s work had upon his underlying arthritic condition (see paragraphs 34 and 35 above). It was the three specific incidents in 2021 that finally made his left knee symptomatic to the degree that he now has difficulty walking short distances, whereas previously he had a long history of being able to perform physical work. The incidents "flared" the knee and made it chronically painful, swollen and functionally restrictive.
r.82. Whether one uses the words “unmasked”, “aggravated” or “flared”, the opinions of the three doctors all allow for the conclusion that the 2021 incidents sustained by the applicant commenced his symptoms in his left knee, which have not since settled or decreased, and which therefore necessitate the proposed surgery by Dr Woodbridge. The material contribution necessary between the injury and the surgery, pursuant to Murphy, has been established.
SUMMARY
a.83. On the balance of the medical evidence, I find that the surgery proposed for the applicant by Dr Woodbridge (a total replacement arthroplasty of the left knee) as referred to in his 16 March 2022 quotation, is reasonably necessary medical treatment as a result of the applicant’s left knee injury, which arose out of or in the course of his employment.
b.84. In those circumstances there will be an award for the applicant for the costs of and incidental to the surgery (a total replacement arthroplasty of the left knee) proposed for the applicant by Dr Woodbridge in his 16 March 2022 quotation, pursuant to section 60 of the 1987 Act.
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