Grasso v Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grasso v Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology [2022] NSWPIC 274
APPLICANT:	Vana Grasso
RESPONDENT:	Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology
MEMBER:	Rachel Homan
DATE OF DECISION:	8 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and section 60 of the Workers Compensation Act 1987 expenses for costs of proposed high tibial osteotomy; left knee injury accepted and prior medial meniscectomy; ongoing effects of injury disputed; whether proposed surgery reasonably necessary as a result of injury; Held- surgery proposed is reasonably necessary as a result of injury; respondent to pay the costs of and incidental to surgery; parties ordered to file consent orders or notice of discontinuance in respect of claim for weekly compensation.
DETERMINATIONS MADE:	1. The left high tibial osteotomy with internal fixation proposed by Dr Timothy O’Carrigan is reasonably necessary as a result of the injury on 1 July 2020.
DETERMINATIONS MADE:	1. Pursuant to s 60 of the Workers Compensation Act 1987, the respondent to pay the costs of and incidental to the left high tibial osteotomy with internal fixation and bone graft proposed by Dr O’Carrigan. 2. The parties to file signed consent orders or a notice of discontinuance in respect of the claim for weekly compensation within 7 days of receiving notice of this determination; in lieu thereof the matter to be listed for further teleconference.

STATEMENT OF REASONS

BACKGROUND

Ms Vana Grasso (the applicant) was employed as a pathology collector by Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology (the respondent). On 1 July 2020, the applicant sustained an injury when she tripped and fell in the course of her employment.
Liability for an injury to the applicant’s left knee in that event was accepted by the respondent’s insurer and the applicant subsequently underwent surgery by way of an arthroscopic debridement with partial meniscectomy performed by orthopaedic surgeon Dr Timothy O’Carrigan.
On 9 September 2021, Dr O’Carrigan recommended that the applicant undergo a further surgical procedure, being a left high tibial osteotomy with internal fixation and bone graft.
Ongoing liability for the left knee injury and the proposed surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 October 2021.
On 2 December 2021, the applicant was notified of a work capacity decision in which it was determined that her entitlement to weekly compensation in respect of the injury on 1 July 2020 had ceased.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 24 February 2022. The applicant sought compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the proposed left high tibial osteotomy with internal fixation and bone graft as well as weekly compensation on an ongoing basis from 24 February 2022.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 17 May 2022. The applicant was represented by Mr Andrew Parker of counsel, instructed by Mr Evan Griffith. The respondent was represented by Mr David Saul of counsel, instructed by Mr Thomas Murray.
During the conciliation conference, an application was made by the respondent for the matter to be referred to a Medical Assessor for a non-binding opinion as to whether the surgery proposed was reasonably necessary. After hearing submissions in support of the application from the respondent’s counsel and submissions opposing the application from the applicant’s counsel, the application was declined. The reasons for that decision were given orally but included the delay associated with such a referral and presence of treating and medicolegal opinions addressing the relevant evidence and issues on both sides.
At the commencement of the arbitration hearing, an application was made by the applicant to adduce oral evidence in relation to whether any radiological investigations or further specialist consultations took place after 18 November 2021. After hearing submissions from the applicant’s counsel and opposing submissions from the respondent’s counsel, that application was also declined for reasons given orally and recorded.
The parties agreed that the Commission should proceed to determine the dispute in relation to the proposed surgery. Noting that the work capacity decision had been stayed due to the commencement of proceedings in the Commission, and that the entitlement to weekly compensation would be dependent on the Commission’s determination as to the ongoing effects of the injury for the purposes of the surgery claim, the parties requested that determination of the dispute in relation to weekly compensation be deferred.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the left high tibial osteotomy with internal fixation proposed by Dr O’Carrigan is reasonably necessary as a result of the injury on 1 July 2020.

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, and
(c)    documents attached to an Application to Admit Late Documents lodged by the respondent on 10 May 2022.

Applicant’s evidence

The applicant’s evidence is set out in written statement made by her on 22 February 2022.
The applicant stated that on 1 July 2020, she was walking into her workplace when she tripped over some boxes and fell, landing on a chair and striking her left hip and knee. The applicant also twisted her right foot and ankle and injured her right wrist and forearm. The applicant reported the incident and continued to work despite the significant pain she was experiencing.
The applicant consulted her general practitioner the following day and was referred for X-rays and physiotherapy. The applicant underwent an X-ray of the left knee on 23 July 2020. An MRI of the left knee was performed on 30 July 2020.
The applicant returned to work performing light duties, six hours per day, five days per week but struggled with those hours due to significant pain.
The applicant was eventually referred to Dr Timothy O’Carrigan who, on 11 March 2021, recommended that the applicant undergo surgery to both her left knee and right ankle.
On 7 April 2021, the applicant underwent arthroscopic debridement with partial meniscectomy at the left knee as well as surgery to the right ankle.
The applicant commenced physiotherapy post-operatively and was required to wear a moon boot for approximately six weeks following the surgery.
The applicant underwent further treatment for the right ankle, including a steroid injection performed in July 2021.
Dr O’Carrigan recommended that the applicant undergo a further surgery to the left knee by way of a high tibial osteotomy.
The applicant continued to attend upon her general practitioner for regular reviews. The applicant said she continued to experience significant pain, stiffness and restriction of movement in her left hip, left knee, right ankle, right wrist and forearm and left ankle. The applicant relied upon pain relief medication and experienced a number of difficulties in her day-to-day functioning

Treating evidence

Clinical records from Kanwal Village Medical Centre dating from 10 November 2015 recorded a consultation on 4 July 2016 as follows:
“pain both knees while kneeling esp L knee”
An imaging request for a plain X-ray of the knee was prepared.
On 1 July 2020, the applicant’s general practitioner, Dr Sophia Umer, noted the applicant had a fall tripping over boxes at work.
On 22 July 2020 the applicant reported discomfort in the left knee related to the work injury. The applicant was referred for plain X-rays.
An X-ray of the left knee performed on 23 July 2020 was reported to show mild degenerative arthrosis of the patellofemoral joint.
On 24 July 2020, the applicant reported that her left knee was gradually getting worse. The applicant was referred for physiotherapy.
An MRI of the left knee performed on 30 July 2020 was reported to show,
“…oedema about the medial collateral ligament in keeping with a grade 1 Injury of the MCL”
and,
“a linear area of high signal at the outer body of the medial meniscus which could relate to a horizontal, inferior surface-extending tear.”
On 17 August 2020, the applicant’s general practitioner, Dr Umer, prepared a report providing a history of the injury on 1 July 2020. Dr Umer said there were no pre-existing conditions known. The applicant was advised to rest and use topical treatment. The applicant was referred for further investigations and advised to see a physiotherapist for the left knee effusion and discomfort.
An MRI of the left knee performed on 10 February 2021 was reported to show slight progress of the medial meniscal tear.
The applicant saw orthopaedic surgeon, Dr Tim O’Carrigan on 25 February 2021. In the report of that date, Dr O’Carrigan noted that on examination the applicant had a valgus left knee and was tender along the medial joint line. Dr O’Carrigan commented,
“The MRI of her left knee which she had, shows a medial meniscal tear which is degenerative in nature. It may well have occurred at the time of her fall. The rest of her knee is ok. Given that she already has a valgus knee; she does not require any treatment other than physiotherapy.”
On 11 March 2021, Dr O’Carrigan reported that there were indications for the applicant to undergo a left knee arthroscopy to deal with any unstable medial meniscal tissue.
An operation report indicated that surgery was performed on 7 April 2021. In relation to the left knee. The report noted:
“PFJ normal, medial compartment grade 1, posterior horn meniscal tear, lateral compartment normal - Meniscal tear debrided to stable base, checked with probe.”
Dr O’Carrigan reported that the applicant’s left knee was going very well post surgery. The applicant had no significant pain and was noted to be continuing with physiotherapy.
In a report from Gorokan Physio Solutions & Sports Injury Centre on 19 August 2021, it was noted:
“Vana has been attending our practice for physiotherapy treatment since 3 August 2020. On review at physio yesterday, 18 August 2021, Vana still presented with swelling, pain at the palpation on the Hoffman Fat Pad and Knee Joint Line. The passive range of motion of her Left Knee is still restricted: 105° and the end feel is tight. Vana reports pain at the end range of 7 /10 pain VAS.”
On 7 September 2021, Dr Umer noted that the applicant had restricted knee movements and knee pain. The applicant was booked for review with Dr O’Carrigan later that week.
An EOS scan performed on 9 September 2021 showed mild medial compartment joint space narrowing in both knees.
In a report dated 9 September 2021, Dr O’Carrigan reviewed the applicant and gave the opinion:
“The main issues are the left knee with ongoing medial knee pain. Clinically, she has slightly varus left knee. She had an EOS scan which shows that her mechanical axis passes medial to the midline and there is a slight reduction in the joint space medially.
We know from the arthroscopy that her patellofemoral joint and lateral compartment are in good condition. She only has very early cartilage changes in the medial compartment but she has lost that medial meniscus. We know the natural history is that her pain is going to increase, her varus is going to increase and the arthritis is going to progress but she is definitely not a candidate for a knee replacement at this point.
To that end, I recommended a high tibial osteotomy which is an opening wedge osteotomy of the proximal tibia to take her out of slight varus to slight valgus. That would involve a 9° correction and 8mm opening wedge. We have also arranged a fine-cut CT scan of her tibia which will allow us to do very detailed 3D planning and 3D print to PSI jigs that will be available to help facilitate the accuracy of the surgery.”
In report dated 18 November 2021, Dr O’Carrigan noted that the applicant’s knee was still a significant issue, commenting,
“Vana experiences constant pain of her left knee especially in the medial joint line. She complains of restricted range of motion, discomfort that wakes her up at night and a high need for pain killers on a daily basis.”
Dr O’Carrigan gave the opinion:
“Given her varus malalignment and relatively good preservation of her joint cartilage, we suggested that Vana may benefit from a high tibial osteotomy procedure. I have explained to her that we cannot guarantee 100% of pain relief with this procedure however we can guarantee that doing nothing would most probably not improve her condition. We would like to review her again in our complex Limb Reconstruction Clinic to discuss with other consultants if a high tibial osteotomy would be the best solution for her.
Prior to that review, we would like her to have a left knee MRI scan. A fine-cut CT scan is already available.”
On 22 November 2021, Dr Umer prepared a clinical note in which it was recorded:
“L knee- pain -seen 18 nov 2021 MRI- L KNEE
…
f /u in 4 weeks post MRI- L knee”
A request for approval of surgery for “LEFT high tibial osteotomy with internal fixation and bone graft” was prepared by Dr Carrigan on 16 December 2021. The total fee was estimated at $7,299.
On 20 December 2021, Dr Umer noted:
“seen - Dr Tim O'carrigan- last week F2f MRI_ L knee- surgery booked - March 23”
Dr O’Carrigan prepared a report for the applicant’s solicitor on 22 January 2022. Dr Carrigan summarised his treating reports. At a review on 16 December 2021, it was noted,
“I reviewed Vana today with x-rays and CT scans. We know that Vana has a varus knee and that is leading to medial compartment overload and pain. Her patellofemoral joint is normal and the lateral compartment is normal. On the MRI scan there is some partial thickness wear of the medial compartment. We know that without intervention, Vana is going to get progressive issues with pain.
…
Our expectation is that this will substantially improve her pain profile and give her the best chance of being able to return to work. The varus alignment is causing overload and the meniscal tear has been a critical loss of shock absorption in the medial aspect of her knee and untreated it will continue to deteriorate and progress to irreversible arthritic changes.”
Dr O’Carrigan was asked whether the surgery proposed was necessary and related to the injury on 1 July 2020. Dr O’Carrigan responded,
“Yes I do. Untreated she is going to experience worsening symptoms and accelerated degenerative changes. A HTO can unload the medial compartment and reduce those overload symptoms and delay the progression of any degenerative changes and thus the need for a total knee replacement in the future.”

Dr Patrick

The applicant relies on a medicolegal report prepared by general, vascular and trauma surgeon, Dr WGD Patrick, dated 23 February 2022.
Dr Patrick took a history of the fall on 1 July 2020 that was consistent with the applicant’s written statement. Dr Patrick noted the referral to Dr O’Carrigan, whom he described as a very experienced orthopaedic/lower limb surgeon.
Dr Patrick referred to the reports of Dr O’Carrigan and noted the evidence of a medial meniscal tear in the left knee, which came to surgical intervention by Dr O’Carrigan on 7 April 2021. The surgery was followed up with considerable physiotherapy.
Dr Patrick noted that Dr O’Carrigan in his letter of 9 September 2021 described the applicant’s main issues as being the left knee, with ongoing medial knee pain and reduction in the joint space medially. Dr Patrick noted Dr O’Carrigan’s recommendation for a high tibial osteotomy.
The applicant’s present symptoms were reported to include ongoing problematic left knee pain, inability to bend the left knee fully, inability to squat and difficulty getting up.
On examination, Dr Patrick observed a mildly antalgic gait, mainly sparing the left knee.
With regard to the surgery proposed by Dr O’Carrigan, Dr Patrick gave the opinion:
“I do believe that Vana Grasso does require further surgery with a view to optimal outcome and getting back to her work.
…
I do believe that Dr Tim O'Carrigan has argued well for the correction of the slight varus at Ms Grasso's significantly injured left knee, and that this argument is sound. He points out that she has ‘full extension with good quadriceps strength and flexion is limited to about 110 degrees’. The EOS scan has shown bilateral varus slightly more on the left side, where there is a reduction in the medial joint space only. Tim O'Carrigan has put considerable thought into the best way forward and I do believe that Vana Grasso would most likely benefit from a high tibial osteotomy procedure (80% probability of satisfactory outcome - my comment - Dr P). The costings appear very reasonable. This would be the best way forward for Vana Grasso, and she is I believe highly motivated to get back to her work with Healius/ Laverty Pathology, and I believe that they would be willing to have her back there.
I do believe that after considerable thought and discussion that the surgery proposed by Dr Tim O'Carrigan by way of a left high tibial osteotomy with internal fixation and bone graft to be reasonable and necessary and related to the injury of 1 July 2020, most certainly.”
With regard to causation, Dr Patrick commented:
“I do agree that the symptoms for which Vana Grasso continues to complain of referrable to her left hip, left knee and right wrist and to some extent right ankle also remain causally related to this accident of 1 July 2020.
I do consider that her employment/ work remains to be the main or a substantial contributing factor to her injuries.”

Dr Wallace

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Raymond Wallace, dated 13 September 2021, 7 October 2021, 27 October 2021, 30 November 2021 and 6 April 2022.
In his first report, Dr Wallace took a history of the fall on 1 July 2020 and the treatment of the injury to the left knee that followed. Following the surgery on 7 April 2021, the applicant was continuing with physiotherapy. The applicant’s present complaints were described as follows:
“At her left knee, she notes intermittent aching pain at the medial and lateral retropatellar facets which is worse on walking, getting up from sitting or on full flexion and is relieved by heat, rest or elevation. She notes intermittent swelling and locking at the left knee. She complains of intermittent giving way, particularly on flexion. She notes stiffness at the left knee.”
Dr Wallace performed a virtual examination and concluded:
“Her current complaints of ongoing pain at her left knee cannot be explained on the basis of any known pathology. She is now some 14 months post-injury and 5 months post-operative intervention at the left knee. At the time of the left knee arthroscopy, she was found to be suffering from a minor medial meniscal tear which was addressed by partial medial meniscectomy at that time. There with no evidence of intra-articular chondral damage apart from some grade 1 changes at the medial compartment.
Her current complaints of ongoing left knee symptoms, some 14 months post-injury, cannot be explained on the basis of any known pathology.
Her work-related left knee injury of 1 July 2020 has resolved.”

In his report of 7 October 2021, Dr Wallace noted that Dr O’Carrigan had recommended further operative intervention in the form of left high tibial osteotomy to address the applicant’s ongoing left knee pain. Dr Wallace expressed the opinion:
“Ms Grasso would not benefit from further operative intervention at her left knee in the form of a left high tibial osteotomy. At the time of review on 8 September 2021, she complained of patellofemoral joint pain but no symptoms involving the medial compartment of the joint. On MRI investigation of the left knee in February 2021 there was no evidence of significant intraarticular chondral damage. It is highly unlikely that the operative intervention of a left high tibial osteotomy will lead to a durable reduction in her level of symptoms or increased function at her left knee.”
In his final report of 6 April 2022, Dr Wallace was asked whether any pathology in the applicant’s left knee had been caused by the work incident on 1 July 2020. Dr Wallace responded:
“Ms Grasso suffered a medial meniscal tear at the left knee as a result of her work injury on 1 July 2020 which has now resolved after her arthroscopic procedure.”
Asked whether the further surgery proposed by Dr O’Carrigan was reasonably necessary. Dr Wallace responded:
“Ms Grasso would not benefit from further surgery in the form of high tibial osteotomy. There is no objective medical evidence that Ms Grasso is suffering from any current significant chondral damage at the medial compartment of her joint given the findings on MRI investigation in February 2021 and her arthroscopic inspection in April 2021. At the time of my previous review on 8 September 2021, she complained only of patello-femoral joint pain but no symptoms along the medial compartment of the joint. The proposed surgical intervention of high tibial osteotomy at the left knee is not reasonably necessary as a result of any work-related condition at the joint.”
Dr Wallace concluded that the requirement for any such surgery did not result from the work injury on 1 July 2020.

Applicant’s submissions

The applicant confirmed that she was seeking compensation for the costs of and associated with the surgery for which approval was sought by Dr O’Carrigan on 16 December 2021.
The applicant confirmed that the dispute before the Commission was confined to whether the injury to the applicant’s left knee had resolved.
The applicant confirmed that there was no claim that the tibia was injured in the event on 1 July 2020. Rather, the applicant said the surgery to the tibia was necessary as a result of the injury on that date.
The applicant submitted that the radiological evidence before the Commission was fairly strong. The type of surgery proposed by Dr O’Carrigan was appropriate in the applicant’s circumstances. The medical dispute before the Commission seemed to focus on whether the applicant had made complaints of symptoms in the medial joint. The applicant submitted that complaints had been made of medial pain all along.
The applicant submitted that her left knee had been entirely asymptomatic other than an isolated complaint of pain in both knees whilst kneeling made to her general practitioner on 4 July 2016. The applicant’s general practitioner had given the opinion that there were no prior injuries of concern and the applicant had been working without issue.
The applicant’s evidence described a traumatic incident on 1 July 2020. It was accepted by the respondent’s insurer that the applicant injured the left knee in that event. The applicant’s knee was radiologically investigated and she underwent physiotherapy. The applicant underwent a left knee arthroscopy on 7 April 2021. The applicant continued with physiotherapy after the surgery, but the further surgery, which had been recommended by Dr O’Carrigan, remained in dispute.
The applicant noted debilitating symptoms and impacts on her functioning at home and ability to work full-time. The applicant had described using medication to alleviate her symptoms in her statement evidence and in the various histories recorded by the treating doctors.
The applicant submitted that the medical case against her was found in the report of Dr Wallace.
Dr Wallace referred to the need for a further MRI of the left knee. The applicant submitted that there was evidence of the MRI having been completed in the clinical records. It could be inferred that the applicant had done everything Dr O’Carrigan had suggested and he continued to recommend the surgery.
Dr Wallace also gave the opinion that surgery was not reasonably necessary due to the absence of complaints at the medial compartment.
The applicant submitted that she had given evidence that her knee remained symptomatic. The applicant’s evidence was credible and not contradicted. The WorkCover certificates issued by the applicant’s general practitioner showed ongoing incapacity in relation to the left knee. There was no gap in the reporting of symptoms at the left knee in the general practitioner’s records.
The applicant referred to the reports from Dr O’Carrigan, who noted a good response to the first surgery. No indication was given in Dr O’Carrigan’s reports, however, that the symptoms in the left knee resolved completely. Dr O’Carrigan noted ongoing medial knee pain. Dr O’Carrigan gave the opinion that the prior surgery did not resolve all of the applicant’s symptoms and in fact exacerbated those symptoms due to all or part of the applicant’s meniscus being removed. Although the applicant only had early compartment changes, the loss of the meniscus was significant.
In the report of 18 November 2021, Dr O’Carrigan noted various symptoms and pathology including, reduction in the medial joint space, constant pain in the medial joint line and a high need for painkillers on a daily basis.
On 22 January 2022, Dr O’Carrigan recommended updated MRI scans. In his most recent report, Dr O’Carrigan noted that on MRI scan, there was some partial thickness wear of the medial compartment. Dr O’Carrigan gave the view that without intervention, the applicant would get progressive issues with pain. Intervention in the form of a high tibial osteotomy was intended to create a slight valgus alignment and unload the medial compartment.
The applicant submitted that Dr O’Carrigan was content to proceed with the surgery on the MRI investigations before him. Dr O’Carrigan had explained his recommendation for surgery.
The applicant submitted that the Commission would be satisfied that the applicant’s left knee symptoms had not resolved. The opinion of Dr Wallace should not be given weight as he had clearly formed the erroneous view that those symptoms had resolved.
The applicant submitted that Dr Wallace failed to engage with the history he had been given and could not say when symptoms actually resolved other than to speculate that they would have resolved after surgery. Dr Wallace’s opinion was arbitrary and did not make logical sense. Dr Wallace emphasised the lack medial compartment issues and referred to the lack of chondral damage.
Complaints of pain were recorded in the reports of Dr O’Carrigan on 9 September 2021, 18 November 2021 and 22 January 2022. Dr O’Carrigan had given a good report which explained why the surgery was required. Untreated, the applicant would experience worsening symptoms and accelerated degenerative changes. The surgery proposed would unload the medial compartment and reduce those overload symptoms, thereby delaying the progression of degenerative changes and the need for a total knee replacement in the future. The proposed surgery would slow this progression significantly and provide substantial symptom improvement.
The applicant submitted that Dr Patrick maintained the opinion that the applicant should have the surgery for the reasons given by Dr O’Carrigan.
The applicant referred to the relevant legal tests in Bartolo v Western Sydney Area Health Service[1] and Rose v Health Commission (NSW)[2]. The applicant had tried everything else and was reliant on the advice of her treating doctors. The doctors had recommended various treatments, which the applicant had willingly undergone. The surgery was intended to prevent a more significant form of surgery being required. The applicant was currently taking heavy medication and wished to return to work and improve her home life.
[1] [1997] NSWCC 1.
[2] (1986) 2 NSWCCR 32 (Rose).
All of the doctors considered the surgery to be reasonably necessary other than Dr Wallace. It was not controversial that the surgery proposed was an acceptable form of treatment.
The applicant submitted that it should be accepted that the applicant had undergone a further MRI at the request of Dr O’Carrigan. The clinical records showed referrals for the MRI and Dr O’Carrigan was happy to continue with surgery.

Respondent’s submissions

The respondent submitted that the Commission would have to be satisfied that the applicant had established on the balance of probabilities that the surgery proposed by Dr O’Carrigan was reasonably necessary and resulted from the frank injury on 1 July 2020.
The respondent accepted that the applicant suffered an injury to the left knee in that event but said it was not a severe injury. The injury did result in a meniscal tear but that was treated.
The respondent submitted that Dr Patrick’s report did not take the applicant’s case beyond the opinions of Dr O’Carrigan. Dr Patrick simply endorsed Dr O’Carrigan’s views instead of giving an independent opinion.
The respondent noted that the applicant suffered a varus condition of the knees, which was not caused by the injury. The varus alignment was noted by Dr O’Carrigan in his reports as a reason why surgery was required.
The respondent referred to the report of 18 November 2021. In that report, Dr O’Carrigan gave the opinion that the applicant may benefit from the procedure and he could not guarantee pain relief. Dr O’Carrigan suggested that he would like to discuss the applicant’s situation with other consultants. Dr O’Carrigan’s report of 18 November 2021 was not a ringing endorsement for the procedure.
Dr O’Carrigan’s evidence suggested he was satisfied with the outcome of the earlier procedure. He only said that there would be no improvement if nothing was done. That opinion fell short of an argument that the surgery was reasonably necessary. There was no analysis as to why the particular procedure would be of any advantage.
The respondent submitted that Dr O’Carrigan had indicated that he wanted other views yet there was no evidence of reports from any other doctor or the further investigations he had recommended. The results of any further MRI were not reproduced in the clinical notes. The respondent submitted that the applicant could not establish, on the balance of probabilities, that the surgery was reasonably necessary or as a result of the injury to the medial meniscus.
The respondent submitted that the applicant’s varus knee alignment was not caused by the injury. It was unclear whether further MRI scans had been performed. Dr O’Carrigan did not refer to the date of the MRI scan he considered in his most recent report. Although Dr O’Carrigan suggested that without the surgery, the applicant would experience progressive issues of pain, it was not possible for Dr O’Carrigan to foresee the future. It was not sufficient to establish that there may be some pain in the future. The surgery could not be guaranteed to reduce the applicant’s current pain. The applicant’s joint was essentially normal. The respondent submitted that the risks of performing the operation would outweigh its benefits.
The respondent submitted that the applicant’s willingness to proceed to surgery was not a relevant factor. Without the preconditions to surgery foreshadowed by Dr O’Carrigan being satisfied, the Commission would not be satisfied that the requirements of s 60 of the 1987 Act were met.
The respondent submitted that Dr Wallace was an experienced specialist and had the relevant documentation before him. Dr Wallace formed the view that whatever occurred in the injurious event had resolved and what remained was not related to injury. The injury was a minor meniscal tear and that injury had resolved. Dr Wallace opined that the applicant was experiencing pain in a different place to that where the injury occurred. There was no evidence of significant chondral damage to explain the applicant’s symptoms. Dr Wallace’s evidence did not support a finding that the proposed surgery was reasonably necessary.
The respondent noted that in his supplementary report, Dr Wallace suggested that new MRI evidence would assist in determining pathology and changes. If the meniscal repair was intact, it was not explicable why the applicant was getting pain at a different site. There was no abnormality shown on the previous MRI other than grade 1 changes. It was unknown whether different findings would be shown on a more recent MRI.
Noting the hesitancy from Dr O’Carrigan in his November 2021 report, his subsequent opinion that the applicant should proceed to surgery was unexplained. Dr O’Carrigan did not state that he had consulted with other practitioners or seen a further MRI. Dr O’Carrigan simply contradicted himself without explanation. Dr O’Carrigan’s opinion lacked a proper foundation of reason.
Dr Wallace, on the other hand, was clear in his view that surgery would not assist and that the area of pain was different to that complained of previously. The injury had now resolved and any new pain was not the result of injury.
Referring to the same legal authorities, the respondent submitted that the availability of alternative treatment was not addressed on the applicant’s evidence. The Commission did not know what conservative treatment might be offered. The surgery was not cheap and the ancillary costs associated with recovery were significant.
On the issue of the effectiveness of the surgery, the Commission had to weigh the contradictory statements of Dr O’Carrigan against Dr Wallace’s firm opinion. The Commission would not find that the surgery was reasonably necessary or causally related to the injury.
The respondent noted that there were references to knee pain and previous X-rays in the clinical records. Although those references were some years prior to the injury, all of the experts in this case had approached the knee condition on the basis that there were no prior knee problems. That history was known to be false and that evidence was important when considering whether the operative treatment proposed was the result of other conditions, for example, the applicant’s varus alignment.
The respondent submitted that the procedure being proposed was surprising given that the applicant’s meniscal repair was successful.

Applicant’s submissions in reply

The applicant submitted that there was nothing contradictory in Dr O’Carrigan’s reports. Dr O’Carrigan had always suggested that the procedure was reasonable and necessary. The applicant submitted that Dr Patrick had a correct history and the respondent’s submission by way of reference to Makita (Australia) Pty Ltd v Sprowles[3] was not applicable to treating doctor evidence.
[3] [2001] NSWCA 305.
The applicant submitted that there was evidence of a further MRI having been performed. Dr O’Carrigan was an experienced specialist and had given multiple reports setting out his reasons for recommending the surgery.
The single reference to knee pain in 2016 was unremarkable given that the applicant was now 66 years old. That clinical record was not capable of undermining the opinions of Dr O’Carrigan and Dr Patrick. The applicant noted that it was not suggested that the applicant’s evidence lacked credibility.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(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).”
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[4] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[4] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
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.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[5] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1.
In Diab v NRMA Ltd[6], to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
“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.
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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[7]
[6] [2014] NSWWCCPD 72.
[7] At [88] to [90].

Deputy President Roche commented further[8]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[8] At [86].
As noted by the parties’ submissions, there is no dispute in the present case that the applicant sustained an injury to her left knee in the fall on 1 July 2020. Liability for that injury was accepted and treatment in the form of the arthroscopy and meniscal tear debridement, performed by Dr O’Carrigan on 7 April 2021, was approved. What is in dispute in these proceedings is the ongoing effect of the left knee injury.
The respondent relies on the medicolegal opinion of Dr Wallace, who despite taking a history of ongoing symptoms at the left knee post-surgery, formed the view that there was no pathological explanation for the ongoing complaints at the left knee. Dr Wallace considered that the work-related injury, being a medial meniscal tear, had resolved with the arthroscopic procedure.
In maintaining that opinion in his supplementary reports responding to the request for further surgery by Dr O’Carrigan, Dr Wallace relied heavily on his initial examination of the applicant in which he recorded that the applicant did not complain of symptoms along the medial compartment of the joint. Dr Wallace could find no pathology to justify the surgical procedure, such as significant chondral damage at the medial compartment.
Dr Wallace’s record of his examination of the applicant and her complaints of symptoms in September 2021, may be contrasted with the treating medical evidence around the same time.
A report from the applicant’s physiotherapist in August 2021 noted that the applicant still presented with swelling, restriction of movement and pain on palpation at the knee joint line. The applicant’s general practitioner also noted knee pain and restricted knee movements on 7 September 2021. In a report dated 9 September 2021, Dr O’Carrigan described the applicant’s main issue as ongoing “medial knee pain”.
Although Dr O’Carrigan agreed that that the applicant had only very early cartilage changes in the medial compartment, importantly, he noted that the applicant had lost the medial meniscus. The applicant had a varus alignment of the left knee. An EOS scan showed a slight reduction in the joint space medially. Dr O’Carrigan expressed the opinion that the natural history was that the applicant’s pain was going to increase, her varus alignment was going to increase and the arthritis was going to progress.
The procedure proposed by Dr O’Carrigan was intended to take the knee out of slight varus to slight valgus alignment. The varus alignment was causing overload. The meniscal tear had caused critical loss of shock absorption in the medial aspect of the knee. Untreated, the knee would continue to deteriorate and progress to irreversible arthritic changes.
It is of some note that at his first consultation with the applicant in February 2021, prior to the first knee surgery, the applicant was reported to have a valgus left knee.
The impact of the meniscal tear caused by the work injury on the applicant’s knee alignment and Dr O’Carrigan’s justification for the high tibial osteotomy procedure is not addressed at all by Dr Wallace. Dr Wallace did not refer to the EOS scan on which Dr O’Carrigan relied. Rather, Dr Wallace focused on the lack of significant chondral damage at the medial compartment and his record that the applicant did not complain of symptoms along the medial compartment, but only at the patellofemoral joint, which, as indicated above, is inconsistent with the treating evidence before me.
The applicant’s medicolegal expert, Dr Patrick, considered the justification for the procedure given by Dr O’Carrigan and expressed agreement with it. Although the respondent submitted that Dr Patrick simply endorsed Dr O’Carrigan’s opinion without providing an independent opinion of his own, I am not satisfied that this is an entirely fair characterisation of Dr Patrick’s report. Dr Patrick performed his own examination and took a history of ongoing problematic left knee pain and restrictions. Dr Patrick considered Dr O’Carrigan’s arguments were sound by reference to the EOS scan. Dr Patrick gave his own opinion that the probability of a satisfactory outcome was around 80%. Dr Patrick considered that the costings were very reasonable and expressed the belief that, after considerable thought and discussion, the surgery proposed was reasonably necessary and related to the injury of 1 July 2020.
The respondent has suggested that the Commission would not be satisfied at the present time that the surgery for which approval was sought by Dr O’Carrigan was reasonably necessary by reference to his comment in the report of 18 November 2021 that he would like to review the applicant in the Complex Limb Reconstruction Clinic and discuss her case with other consultants. Dr O’Carrigan also recommended that the applicant have a left knee MRI scan prior to that review.
There is no clear evidence before me that the applicant’s case was discussed with other consultants or that the applicant underwent a further MRI following the consultation on 18 November 2021. The recommendation for an MRI was, however, noted in the clinical records of the applicant’s general practitioner. Those notes suggested that the applicant would be followed up in four weeks after an MRI of the left knee was performed. The applicant was in fact seen by Dr Carrigan four weeks later, on 16 December 2021.
In the summary of that consultation recorded in the letter to the applicant’s solicitor on 22 January 2022, Dr O’Carrigan said he had reviewed the applicant with X-rays and CT scans. Dr Carrigan also referred to an MRI scan showing partial thickness wear of the medial compartment. There is some uncertainty as to whether the MRI scan being referred to is one performed after 18 November 2021. It is, however, noted that “partial thickness wear of the medial compartment” is not mentioned in the reports of the MRIs performed in July 2020 or February 2021.
What is clear, is that on 16 December 2021, Dr O’Carrigan expressed an unqualified opinion that a high tibial osteotomy with internal fixation bone graft would substantially improve the applicant’s pain profile and give her the best chance of being able to return to work for reasons explained by Dr O’Carrigan. Approval for the procedure was formally sought in a request of the same date. That unqualified opinion was maintained in the report Dr O’Carrigan prepared for the applicant’s solicitor in February 2022. As noted above, Dr O’Carrigan’s proposal for surgery has received support from the applicant’s independent expert, Dr Patrick.
I do not accept the respondent’s submission that Dr O’Carrigan has contradicted himself without explanation. There is a reasonable inference available to be drawn that the MRI recommended by him had in fact been performed by 16 December 2021. It is noted that the other consultants with whom he wished to discuss the applicant’s case were from Dr O’Carrigan’s own practice. Even if I am wrong in relation to these matters, I do not find Dr O’Carrigan’s subsequent opinion contradictory. Rather his conviction that the procedure was the appropriate course was simply stronger at the time of his subsequent review.
The respondent has suggested that Dr O’Carrigan’s comments in his 18 November 2021 report that the applicant “may” benefit from the procedure and he could not guarantee pain relief, cast doubt on the reasonable necessity of the procedure. It may be, noted, however that Dr O’Carrigan’s estimation of the success of the proposed procedure had substantially improved by the time of his review on 16 December 2021. On that occasion, Dr O’Carrigan said the procedure would “substantially improve” the applicant’s pain profile. That estimation is consistent with Dr Patrick’s assessment that the procedure would have an 80% probability of a satisfactory outcome.
Dr Wallace’s suggestion that the applicant would not benefit from the procedure must be viewed in the context of his opinion that there was no clinical or pathological justification for the procedure.
It has also been suggested by the respondent that the procedure proposed by Dr O’Carrigan may not be reasonably necessary having regard to an absence of evidence as to what alternative treatments may be available to the applicant. It is clear, however, that conservative treatment has been attempted over a lengthy period of time. The applicant has undergone extensive treatment by way of physiotherapy both before and after the initial surgery by Dr O’Carrigan. The applicant has also been treated with medication. A number of investigations have been performed. There is no suggestion in any of the medical evidence before me that any other treatment may be available to the applicant. I am satisfied on the evidence before me that the applicant continues to experience significant pain and restrictions in the left knee. The applicant’s doctors have suggested that without the further treatment proposed, those symptoms would continue to deteriorate.
Whilst the costs of and ancillary to the procedure are not insignificant, I accept Dr Patrick’s view that they are reasonable, having regard to the applicant’s current condition and the good probability of a successful outcome from the procedure.
For the reasons given above, after carefully weighing all of the evidence and submissions, I am satisfied that the procedure proposed by Dr O’Carrigan is appropriate, potentially effective and has been accepted by the applicant’s expert, as such. I am not satisfied that there is any alternative treatment with potential to be more effective. The costs of the treatment are reasonable. I am satisfied that the surgical procedure is reasonably necessary.
Finally, the respondent has submitted that the weight the Commission would afford to the opinions on causation given by Dr O’Carrigan and Dr Patrick would be diminished due to the failure to take into account the prior history of left knee pain recorded in the general practitioner’s clinical records.
A review of the clinical records reveals, however, a single complaint of knee pain in July 2016. Although there was a referral for X-ray, there is no evidence that the X-rays were performed or that any follow-up treatment was recommended. There is nothing in the clinical records, which are extensive, to suggest ongoing complaints of knee pain. The applicant was apparently able to perform her pre-injury duties unimpeded by any condition at the left knee. There is no dispute that the fall on 1 July 2020 resulted in an injury to the left knee in the nature of the meniscal tear. The meniscal tear and the consequent meniscectomy have been identified by Dr O’Carrigan as materially contributing to the need for surgery proposed. In all the circumstances, I am not satisfied that this omission in the history recorded is so significant as to diminish the weight that should be afforded to the opinions of Dr O’Carrigan or Dr Patrick.
I accept the opinions of Dr O’Carrigan and Dr Patrick. I am satisfied that as a result of the injury on 1 July 2020, it is reasonably necessary that the applicant undergo the high tibial osteotomy with internal fixation and bone graft, as proposed by Dr O’Carrigan.
There will be an order that the respondent pay the costs of and incidental to the surgery in accordance with s 60 of the 1987 Act.
In relation to the outstanding claim for weekly compensation, I will direct the parties to file signed consent orders or a notice of discontinuance in respect of that claim within seven days of receiving notice of this determination. In lieu thereof, the matter will be listed for further teleconference to deal with the claim for weekly compensation.

[2022] NSWPIC 274

8 June 2022