Gray v Australian Unity Home Care Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gray v Australian Unity Home Care Services Pty Ltd [2022] NSWPIC 5
APPLICANT:	Nicole Gray
RESPONDENT:	Australian Unity Home Care Services Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of proposed left knee arthroscopy; consideration of clinical notes and Davis v Council of the City of Wagga Wagga and Mason v Demasi; causation and Kooragang Cement Pty Ltd v Bates considered; scientific literature considered; Held - proposed surgery reasonably necessary.
DETERMINATIONS MADE:	1. Left knee arthroscopy as proposed by Dr Workman (the proposed surgery) is reasonably necessary as a result of both injury to the left knee sustained by the applicant on 23 March 2017 and left knee condition consequential to injury to the right ankle on 23 March 2017.
ORDERS MADE:	2. The respondent to pay the costs of and related to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute, Ms Nicole Gray (the applicant) claims for the cost of future medical, hospital and related treatment expenses for a left knee arthroscopy as recommended by her treating orthopaedic surgeon, Dr Workman, in respect of injury to the left knee on 23 March 2017 in the course of her employment with Australian Unity Home Care Services Pty Ltd (the respondent), as well as aggravation of the left knee injury as a consequential left knee condition as a result of injury to the right ankle on 23 March 2017.
The workers compensation insurer, GIO as scheme agent, provided section 78 notices dated 30 July 2019 and 18 August 2019 as well as a section 287A review notice dated 10 December 2020. Liability was disputed on the basis that it was disputed that the claimed medical or related treatment was reasonably necessary as a result of an injury. The claimed consequential left knee condition was disputed. Causation and reasonable necessity were disputed. Injury to the right ankle was not in dispute.

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 22 October 2021, the applicant was represented by Mr Niven of counsel, and Ms Bussoletti, solicitor, and the respondent by
Ms Balendra of counsel and Ms Bentley and Ms Brunetta, solicitors.

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.

The arbitration commenced with an amendment to the Application to Resolve a Dispute. As submissions unfolded, it appeared to me that the parties were not ad idem as to the effect of the amendment. After I raised this with the parties, the respondent withdrew its consent to the amendment and the applicant thereafter withdrew the amendment and relied upon the Application to Resolve a Dispute as unamended. The effect was that further submissions were made in respect of causation.

EVIDENCE

Documentary Evidence

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

(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and

(c) Application to Admit Late Documents dated 16 September 2021 and attached documents.

Oral Evidence

There was no application to cross-examine the applicant nor to provide oral evidence by a witness.

The applicant’s statements

The applicant provided statements dated 26 October 2020 and 29 June 2021.
In her statement dated 26 October 2020, the applicant said that on 23 March 2017 she was walking up a set of stairs of the client’s home and as she stepped onto the top step it gave way and broke. She stated that she fell through the step, fell a distance of about 1 m and injured both of her legs and her right foot. She stated that she had two deep grazes to the front of both legs, with the grazed of the right leg near the knee and the graze of the left leg above the ankle on the shin. The applicant stated that her right foot was very sore. She stated that she attended the accident and emergency Department of the Belmont hospital where an x-ray was taken and she was discharged. She stated that the graze to the left leg, above the ankle and on the shin, was particularly deep and she had to have four lots of antibiotics because the graze was not healing.
The applicant stated that she consulted her GP, Dr Hamidi, on the following Monday and he arranged for a CT scan instead of an x-ray as there was too much swelling. The applicant stated that when she attended the GP she was assisted by her daughter and her mother-in-law as she could not walk and she could not bear any weight on either leg and she was using crutches. The applicant said that in the following two weeks she could not walk unaided and was in bed for most of the two weeks. The applicant underwent a CT scan of the right ankle and an MRI scan. Her GP referred her to Dr Rao, orthopaedic surgeon.
The applicant stated that Dr Rao arranged for her to wear a “moon boot”, which she wore for 10 weeks. She said that she continued to suffer from severe pain in the right ankle and to a lesser extent the left knee. The applicant stated that most of the focus was on her right ankle condition. She stated that Dr Rao continued to provide right ankle treatment and after earlier requests, the workers compensation insurer approved surgery and she underwent right ankle exploratory surgery in February 2018 by Dr Rao. She said that she was off work from February 2018 and returned to work in June 2018. The applicant said that she was still in a lot of pain in her foot and she had no feelings in the toes of the right foot. She was still receiving treatment from Dr Rao. In November 2018 Dr Rao put in a request for further surgery, which was denied following a medicolegal assessment by Dr Hyde Page, at the request of the workers compensation insurer.
The applicant stated that since the injury of 23 March 2017 she had symptoms in her left knee and had continued to complain of pain in the left knee to her GP.
After a request by her GP in September 2018, the applicant said that she underwent an MRI of the left knee in December 2018. She said that her GP referred her to Dr Workman, orthopaedic surgeon whom she first saw on 6 March 2019. He stated that he recommended having physiotherapy and rehabilitation treatment initially.
The applicant stated that by April 2019 the insurer had approved her right ankle surgery. She also said that Dr Workman recommended that she undergo left knee arthroscopy as she was too young to have a total knee replacement. She stated that Dr Workman requested approval from the insurer for a left knee arthroscopy on 17 June 2019.
The applicant stated that she attended an assessment arranged by the workers compensation insurer by Dr Anthony Smith on 21 January 2020. She referred to the medicolegal report of Dr Anthony Smith dated 3 February 2020 and in particular the first paragraph on page 5 of his report in which he stated that there would have been significant symptoms from the left knee within 24 to 48 hours of the injury of 23 March 2017.
The applicant stated that she was very surprised to read that paragraph of Dr Smith report as she had told him on examination of the full history of the injury and symptoms as she had set out in her statement, namely that she could not weight bear or walk and she could not stand and she was in extreme pain following the injury over the two-week period while she was waiting for the CT scan. She stated that Dr Smith had not made any mention in his report of the history that she gave him in relation to those symptoms and she disputed his statement that there were no significant symptoms from the left knee as she said that she did have symptoms of severe pain, restricted movement and difficulty weight bearing in the left knee.
In her supplementary statement dated 29 June 2021, the applicant reiterated that there were extensive periods with respect to the treatment of the right ankle when she was not able to weight bear on the right leg and she therefore put most of her weight on the left leg and she was limping and had an altered walking gate which affected the functioning of the left leg. She stated that she believed that the altered walking gate and excess weight bearing on the left leg aggravated the condition of her left knee and her symptoms gradually increased and eventually she was referred to Dr Workman for treatment of the left knee.
The applicant stated that if she had had surgery on her foot earlier than February 2018, that is 11 months after the injury, when Dr Rao recommended it in September 2017, she would have focused on her knee after that time. She stated that she had to focus instead on the pain in her right ankle and now that her foot is bearable she needs her left knee fixed.
The applicant stated that she had no previous injury to the left knee before the work injury of 23 March 2017.

Dr Rao

Dr Rao, orthopaedic foot and ankle surgeon, provided a number of treating reports, including operation reports dated 22 September 2017, 25 February 2018 and 23 May 2018. The applicant consulted Dr Rao regarding treatment of her right ankle and foot. On 22 September 2017 the applicant underwent right ankle manipulation under anaesthetic and injection. On 25 February 2018 the applicant underwent right ankle “right tib post tendoscopy, sheath stabilisation, navicular ostectomy and tib post tendon stabilisation”. On 23 May 2018, the applicant underwent right ankle manipulation under anaesthetic and steroid injection.

Dr Hamidi

Dr Hamidi is the applicant’s treating general practitioner (GP). There was no reference to left knee symptoms in Dr Hamidi’s clinical notes until November 2018.
In a clinical note of 27 March 2017, Dr Hamidi recorded a history of “accidental fall… cannot weight on the R ankle x-ray was normal… normal on exam severe pain on area”.
In a letter to the workers compensation insurer dated 6 February 2019, Dr Hamidi appeared to respond to a list of questions, which were not identified. However, it appears that he diagnosed “ACL tear, patella oedema” and also responded to a question with the words “yes I do, as Nicole overuse the L knee while injured on WC, (over compensate)”. He believed that the applicant should see a specialist orthopaedic surgeon, Dr Workman, for review.

Relevant left knee MRI scan reports

In a left knee MRI scan report dated 11 December 2018, Dr Roy noted a history of “overuse of the left knee? Ligament damage”. Dr Roy noted his findings. It was Dr Roy’s impression that “there is evidence of a tear noted through the anterior cruciate ligament. There are also changes seen in the medial patellar facet”.
In a left knee MRI scan report dated 4 October 2019, Dr Janke noted a clinical history of “? Anterior cruciate ligament tear and medial meniscal tear”. Dr Janke’s conclusion was “torn posterior horn medial meniscus with small parameniscal cyst. Both cruciate ligaments have a scarred appearance. Mild chondral changes as described”.

Dr Workman

In a referral letter to Dr Workman dated 28 December 2018 from Dr Hamidi, it was stated that the applicant was “a case of WC with L knee injury due to injury due to the R ankle area and overuse/favouring the knee”.
Dr Workman provided a number of reports. In his initial treating report dated 6 March 2019, Dr Workman noted a history that two years ago the applicant suffered injury when she fell through some stairs at a client’s home. Dr Workman stated that he was able to view a photograph of the step and “it would appear as though Nicole for roughly a metre in height with the right side of the stair giving way and her falling heavily onto the right side. Nicole says she ended up twisted around with her bottom on the step above at the end of it all”.
Dr Workman also stated:
“She obviously suffered a significant injury to her right ankle and she has had ongoing therapy and some surgery performed by Dr Pankaj Rao. She is still, however, having trouble with that ankle. Nicole has spent quite a good deal of time either on crutches or altered weightbearing that has thrown a lot of stress onto her left side.
With regards to Nicole's left knee, she did not really notice that there was a major injury at the time of the fall. She has had some ongoing pain since the injury which has been steadily getting worse especially since September of last year. She describes symptoms consistent with instability where she is unable to trust the knee and she is unable to pivot on the knee. She has pain that is located posteromedially.”
Dr Workman on examination noted that the applicant had “an obvious anterior cruciate ligament deficient knee”. He stated that the MRI showed that she had a tear of her anterior cruciate ligament and also a degenerative tear in the posterior horn of her medial meniscus although that was not reported. He also noted evidence of early degenerative changes in her patellofemoral joint and medial compartment.
Dr Workman also stated:
“This is a difficult situation for Nicole obviously with both legs being significantly painful and disabling. On the basis of what I have, I am unable to explain adequately why Nicole's knee is anterior cruciate ligament deficient. She cannot recall any previous injuries in the past and can only assume that the ligament was damaged at the time of the injury as it is the only high energy injury that she has suffered.”
Dr Workman recommended treatment in the first instance with a well structured anterior cruciate ligament rehabilitation program to build strength and help alleviate instability symptoms. He also stated that if her meniscal tear becomes more symptomatic then she may require arthroscopic management, although for the time being a nonoperative management program was the best way to go.
In his treatment review letter of 13 November 2019 to Dr Hamidi, Dr Workman noted that currently the applicant’s knee symptoms were not too bad and he noted that she did get pain when loading the knee up. Dr Workman was of the opinion that at that stage, on balance, it was agreed that left knee surgery is probably not recommended at that time, although that situation may change further down the track. He was of the opinion that in the longer term he thought that the applicant’s anterior cruciate ligament deficient and medial meniscal deficient knee is likely to develop early onset arthritic changes which may lead to the need for other procedures such as knee replacement surgery at some point in the future.
In his letter dated 23 October 2020 to the applicant’s solicitors, Dr Workman stated that “the issue that I would have with the IME opinion by Dr Anthony Smith is that he incorrectly had attributed a diagnosis of tricompartmental osteoarthritis to Nicole’s left knee”. Dr Workman stated:
“The MRI she had of her left knee performed on the 4th of October 2019, shows no evidence of any significant arthritic changes in her symptomatic medial compartment. She does have some patellofemoral joint changes but these are not symptomatic. The only significant abnormality in the medial compartment of her left knee is that of the posterior horn medial meniscal tear which is symptomatic and this is the reason I have recommended left knee arthroscopy after conservative measures and the test of time have not improved Nicole's symptoms.
In summary, whilst I agree with Dr Smith's assertion that knee arthroscopy has no part to play in the treatment of osteoarthritis, I disagree with his presumed diagnosis of osteoarthritis for which there is no evidence based on images from a high quality MRI scan showing that her medial compartment is essentially normal from an articular cartilage point of view.”
In his letter of 5 May 2021 to the applicant’s solicitors, Dr Workman noted that he had received further correspondence from the insurer with a supplementary report from
Dr Anthony Smith which again seemed to emphasise that the primary diagnosis in the applicant’s left knee is osteoarthritis. Dr Workman reiterated that the applicant does not have significant osteoarthritis affecting her left knee. He noted that the applicant had a high quality MRI that did not show any significant signs of osteoarthritis particularly in the medial compartment where her symptoms are. He noted that the report specifically stated that the articular cartilage in her knee is intact other than in her patellofemoral joint where there are mild changes.
Dr Workman also stated that he had viewed weight-bearing x-rays of both knees on 31 January 2020 and he agreed entirely with the report of the images which stated that the images of her left knee represent a normal x-ray appearance. Dr Workman stated:
“The issue here is a wrong and presumptive diagnosis that has lead to significant delays in Nicole's treatment. The issue regarding the timing of her symptom onset is another matter. Nicole has had pain in both knees and legs since the time of the accident, with no pre-existing symptoms.”
In his letter of 1 September 2021 to the applicant’s solicitors, Dr Workman was of the opinion that the applicant did suffer a frank injury to her left knee on 23 March 2017. He stated that at the time of the injury she was more focused on the right ankle which was the worse of the injuries and understandably so.
Dr Workman also stated:
“Over the course of treatment for her right ankle injury, that occurred over a long period of time, Nicole had to non-weight bear and walk with an altered gait using walking aids for long periods of time. I believe this has then lead to an additional aggravation over time, of the initial injury that she suffered to her left knee on the basis of increased load and demand on her left knee. This explains the perceived delay in reporting of symptoms.
There were no degenerative changes of clinical significance in her left knee either clinically or on any of her imaging so there is no aggravation of any pre-existing condition in my opinion.
This gradual worsening over time would explain the Nicole delay in reporting of her left knee injury.”

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided a medicolegal report to the applicant’s solicitors dated 16 November 2020.
Dr Bodel noted that following the subject injury, the applicant was off work initially for a period of about 10 weeks with her right ankle and was mobilised in a boot, then returned to work after that 10 weeks in June 2017. He noted she was struggling because of continuing pain in the foot and was then again off work in September 2017 for another month. She was off work for 16 weeks after the surgery in February 2018 and she returned to work with
pre-injury duties until a further injury to the knee when squatting down with the client in March 2020 and she was off work for another week.
Dr Bodel recorded a history of injury on 23 March 2017 when she was walking up a set of external wooden steps at a client’s house and on the third step the whole structure gave way on her and she slipped and fell through the stairs, injuring both feet and both legs. He noted that there was a graze on the right knee and deep Gray’s over the front of the right ankle. He noted that she subsequently managed to get herself to the Belmont hospital where x-rays were taken.
Dr Bodel also noted that the applicant said that she spent further time in a boot and eventually underwent CT scan and an MRI scan and was then referred to Dr Rao, who arranged for some PRP injections. Surgery was recommended but declined by the insurer and again requested in September 2017 and December 2017 and eventually surgery was approved. The applicant underwent surgery on 12 February 2018. He noted that following the surgery there had been continuing numbness in the region of the right foot and hypersensitivity and she was referred also to see a pain specialist and she had some local block injections which had been very helpful. He noted that Dr Rao had indicated that the applicant may need also to have a tarsal tunnel clearance but liability had not been accepted for this.

Dr Bodel also noted that as the foot had slowly improved the applicant developed increasing knee pain for which she had an MRI scan and was seen by Dr Workman. He noted that
Dr Workman had indicated at her age with some early degenerative change he would not recommend a knee replacement as it was too early to do so and he did not consider that the ACL should be reconstructed. Dr Bodel noted that Dr Workman recommended a gentle arthroscopy to remove the tear of the medial meniscus which he felt is the main area of the source of pain. Dr Bodel noted that the applicant is keen to proceed with that recommendation.
Dr Bodel noted that the applicant has developed increasing anterior medial knee pain in the left knee which was present on day one at the time of the fall but it was a minor pain and the ankle and feet were more painful. He noted that over time the left knee had deteriorated without additional accident or injury although there was the squatting down episode in March 2020 which also increased the pain.
Dr Bodel noted the report of Dr Smith. Dr Bodel agreed that the ACL rupture should not be repaired in the presence of significant degenerative change.
However, Dr Bodel agreed with Dr Workman that:
“she does have apparent mechanical symptoms associated with the torn meniscus and it would be prudent to do a cautious resection of the torn meniscus and that may help her situation in the short to medium term. There is also a full thickness articular cartilage defect in the medial femoral condyle and this may benefit from a gentle chondroplasty, although this has to be done very cautiously without aggravating the circumstance and increasing the risk of the need for the knee replacement and bringing forward the timing when that will inevitably be done. If the arthroscopy is to be done, it has to be done in the full knowledge that this may make this worse but it also has the potential to improve matters in the short to medium term.”
Dr Bodel also stated:
“I am aware of the Moseley report that he refers to in 2002 and that is a classic report in regard to the arthroscopic management of a knee injury in the arthritic knee. That did clearly show that a poorly done arthroscopy can hasten the timing for the need for the total knee replacement.”
Dr Bodel was of the opinion that the knee is the main problem now that needs further treatment and the MRI scan of the knee confirms the pathology.
Dr Bodel was of the opinion that the applicant’s left knee was injured at the time of the event on 23 March 2017 and there has been a tear of the posterior horn of the medial meniscus noted that the left knee was always less troublesome than the right foot in the early stages.
Dr Bodel was of the opinion that it was likely there was a frank injury to the left knee with a tear of the posterior horn of the medial meniscus and the ACL injury. He was of the opinion that:
“there has been an element also of the consequential injury to the left knee because she has been using that side almost exclusively for a period of about three months while she was using the knee scooter for the right foot and ankle injury and that has further aggravated, exacerbated, accelerated and deteriorated the injury in that left knee.”
Dr Bodel was of the opinion that there is evidence of a degenerative process in the left knee that is clearly defined in the MRI scan. He stated that “the nature of her work and the injury has been the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to that disease process, particularly the tear of the posterior horn of the medial meniscus”.
In relation to the left knee arthroscopy proposed by Dr Workman, Dr Bodel was of the opinion that this treatment “is reasonable and necessary although it has to be done cautiously”. He stated:
“Dr Smith makes a very good case for not doing the arthroscopy and I can accept that that is the case but when done carefully, with evidence of a mechanical cause for pain (the torn medial meniscus), then it can help in the short to medium term. Inevitably she will need a knee replacement and hopefully that arthroscopy does not accelerate the timing for the need for that.”

Dr Hyde Page

Dr Hyde Page, orthopaedic surgeon, provided medicolegal reports to the workers compensation insurer dated 30 January 2019 and 7 March 2019.
In his report of 30 January 2019, Dr Hyde Page noted a history that the applicant had just put some washing out on a line in the client’s backyard and had climbed up three steps back into the house when the three timber steps collapsed to the ground and she literally dropped the best part of a metre to the ground jarring her right foot and ankle. He noted that she also suffered grazes to her legs.
Dr Hyde Page noted the course of early treatment in respect of the right foot and ankle.
Dr Hyde Page noted that following the surgery in February 2018 the applicant remained non-weightbearing for a month and then went back into a moon boot for another eight weeks. He noted that in May 2018 the applicant had manipulation of her ankle and anaesthetic and a cortisone injection. He also noted that the applicant had treatment in November 2018 from a pain management specialist for numbness in her toes, and the applicant underwent a course of nine injections with some improvement but remaining numbness in the toes.
Dr Hyde Page noted on examination that there was normal examination of the left knee where her ligaments appeared to be intact. He noted an MRI scan of the applicant’s left knee in December 2018 and noted that this showed some subchondral oedema in the patellofemoral joint and some suggestion of an ACL tear. He was of the opinion that there appeared to be no other abnormality.
In his supplementary report of 7 March 2019, Dr Hyde Page noted that he had re-read his original notes and report. He noted that in his original report he did not comment on the left knee as he was only asked to answer questions about the right foot and ankle. He noted that he did however ask the applicant about her left knee condition. Dr Hyde Page noted that the applicant told him that the left knee had become painful in the last six months and she attributed this to favouring her right foot and lower limb and she had not actually had any injury to her left knee.
Dr Hyde Page noted that when he examined the applicant’s left knee, as he had noted in his earlier report, he found no abnormality and there was a normal examination and he felt that the cruciate and collateral ligaments were intact. He noted the MRI of the left knee on 11 December 2018 which indicated an ACL tear but “there was no quantification as to the extent of the tear”. He was of the opinion that the knee is otherwise normal and he did not consider the changes seen on the medial patellar facet, where there was some subchondral oedema, as significant he was of the opinion that as his examination of the knee indicated the ACL was intact it was unlikely that the tear suggested on the MRI was significant. He therefore considered the MRI scan of the left knee as normal with no suggestion of any significant internal derangement, corresponding with his normal examination.
In respect of diagnosis, Dr Hyde Page was the opinion that the applicant had developed some symptoms in the left knee in the previous six or seven months and these had come on without knee injury. He was of the view that as the applicant was functioning quite well with the right lower limb and was back doing her normal work he did not consider that the onset of the symptoms in the left knee were directly related to her right ankle and lower limb. He was of the opinion that it was more relevant that the applicant had put on a lot of weight and now weighed 108 kg. Dr Hyde Page was of the view that there was “certainly no condition in the knee on the MRI scan that suggests she suffered any significant knee injury or strain and her examination is normal”.

Dr Anthony Smith

Dr Anthony Smith, orthopaedic surgeon, provided medicolegal reports to the workers compensation insurer and to the solicitors for the respondent.
In his report dated 3 February 2020, Dr Smith recorded a history of injury on 23 March 2017 when she was going up some stairs at a client’s home and the stairs were faulty and gave way. He noted that she sustained injury when she fell about one metre on the right foot and hurt both her legs, but the right foot was the most severe problem. He noted the history that both knees were injured.
Dr Smith noted that the applicant attended the Belmont hospital and was referred to her GP, Dr Hamidi, and x-rays were undertaken as well as a CAT scan, with referral to Dr Rao. He noted that subsequent to seeing Dr Rao the applicant was put in a moon boot for about 10 weeks and was off work for that time before she returned to her usual occupation.
Dr Smith noted treatment of the right ankle and foot with PRP injections and an ankle arthroscopy in February 2018 and she continues with problems involving the right ankle and foot.
Dr Smith noted also that the applicant had ongoing problems with her left knee, which was painful and stiff and she had difficulty kneeling, squatting, working on uneven surfaces and in confined spaces. He noted that the applicant sees Dr Workman with regard to the left knee and he has recommended a knee arthroscopy. He noted that prior to the work injury of 23 March 2017 the applicant was orthopaedically well.
Dr Smith noted the correspondence from Dr Hyde Page dated 7 March 2019 in which the history was taken of the left knee becoming painful over the previous six months, attributed to favouring the right foot, and there was no injury to the left knee.
Dr Smith noted that he did not have any contemporaneous information regarding the accident of 23 March 2017 and he was unaware of the nature of the surgery to her right foot to date.
Dr Smith noted correspondence from Dr Workman dated 31 July 2019 which describe the ACL tear being clearly visible on the MRI images but not reported by the radiologist. He also noted another letter from Dr Workman dated 6 March 2019. He noted the MRI report of the left knee taken on 11 December 2018. He also noted another MRI report dated 4 October 2019. Dr Smith noted that he viewed the MRI images from 11 December 2018 which the applicant had brought with her and he was of the opinion that these demonstrated triple compartment osteoarthritis in the knee, myxoid degeneration in the medial meniscus without any tearing, deficient anterior cruciate ligament and patellar alta.
Dr Smith was of the opinion that the applicant had bilateral knee osteoarthritis, the left knee worse than the right symptomatically. He recommended that she should have x-rays of both knees with weight-bearing, lateral, skyline and Rosenberg views. Dr Smith was of the opinion that the bilateral knee osteoarthritis involves all three compartments of the left knee. He was of the opinion that it was more likely than not that the changes demonstrated on the two MRIs of the left knee predate her work injury. He was of the opinion that it is unlikely that there was any relationship between the applicant’s current left knee problems and the accident of 23 March 2017.
Dr Smith was of the opinion that if she had sustained any of the changes demonstrated on MRI under the circumstances described with the work accident of 23 March 2017 “there would have been significant symptoms from the left knee within 24 to 48 hours of that injury”.
Dr Smith indicated that the applicant sustained an aggravation to her left knee osteoarthritis many months subsequent to the injury of 23 March 2017 and “it is more likely than not that she would be in the same position that she is in now, with regard to the left knee, whether that accident occurred or whether it did not”. He was of the opinion that the right ankle and foot injury were not a substantial contributing factor to the left knee osteoarthritis.
In respect of the proposed treatment by Dr Workman, Dr Smith noted that this appeared to be a debrided mint performed arthroscopy. Dr Smith was of the opinion that treatment “has no place in the management of knee osteoarthritis”. He was of the view that clinically the applicant did not require an ACL reconstruction and “basically, the cleanout procedures that are likely to be undertaken by Dr Workman are not beneficial (please see excerpt from Mosley et al. at the end of the report)”.
In his letter dated 13 July 2020 to the workers compensation insurer, Dr Smith stated his opinion that the proposed knee arthroscopy is to treat the applicant’s knee osteoarthritis not an injury. He confirmed his view that in his opinion the proposed surgery is not indicated.
In his report dated 11 February 2021 to the solicitors for the respondent, Dr Smith was asked to provide reasons why he formed the view that the applicant suffered an aggravation to her left knee osteoarthritis many months after the work injury. He was of the opinion that if there had been a significant injury to the left knee on 23 March 2017 “that would have been the most prominent area with symptomatology”. He noted that she had problems with the right ankle and foot. He was of the opinion that “she may well have aggravated her knee arthritis on the left or the right which would have been present when she had the accident on 23 March 2017”. He also stated that:
“primarily based on the letter of Dr Hyde Page of March 2019, the left knee symptoms only had been a problem for the last three months of 2018 in the first three months of 2019. There is a gap of 18 months between the March 2017 accident and significant left knee problems in September or thereabouts 2018.”
Dr Smith was also of the opinion that if in the fall of 23 March 2017 the applicant sustained an aggravation, albeit minor, to the left knee arthritis then that fall would have been the main contributing factor to that aggravation “which resolved of its own accord and left no disability” and “she did not begin to have significant aggravations until 18 months after that accident”.
Dr Smith also stated:
“Knee arthritis is a constitutional familial inherited condition. The precise mode of inheritance is not yet fully understood. It occurs in about 20% of the population of Caucasian origin. It occurs bilaterally and equally in males and females. In my opinion, if she would have had x-rays of both her knees with her weight-bearing, with lateral, Skyline and Rosenberg views, in 2016, the diagnosis of bilateral arthritis could have been made.”

Submissions

In relation to injury, the respondent submitted that in the applicant’s statement it was not until she was examined by Dr Hyde Page, whom she said made the comment that there was a lot of damage in the left knee, that she obtained an MRI of her left knee. It was submitted that the applicant stated that she believed that the altered gait and excess weight bearing on the left knee aggravated her injury and symptoms gradually increased and she was eventually referred to Dr Workman for treatment for the left knee. It was submitted that it was the applicant’s own evidence that injury in relation to the left knee is one where the symptoms developed over time and it was submitted that this was some considerable period of time after the initial injury on 23 March 2017 and what occurred was a consequential injury which accords with the description and examination that was conducted by Dr Hyde Page, he was of the opinion that this was an aggravation of the osteoarthritic condition.
The respondent submitted that this also accorded with the report of Dr Smith who was of the opinion that it was unlikely there was a relationship between the current left knee problems and the accident of 23 March 2017, and in any event if she had sustained any of the changes demonstrated on the MRI there would have been significant left knee symptoms within 24 to 48 hours of the incident of 23 March 2017. It was submitted that Dr Smith was of the opinion that if the images or symptoms described in the 11 December 2018 MRI had occurred on 23 March 2017 then there would have been significant symptoms at that time. It was submitted that it was the applicant’s own statement that the symptoms did not affect her until some time after the incident of 23 March 2017. It was submitted that no investigations of particular significance had been done on the left knee until the MRI of 11 December 2018, suggesting that what was happening with the left knee was a consequential injury rather than a frank injury that occurred on 23 March 2017, and that accords with the applicant’s own opinion and description of the symptoms as a consequential injury.
It was submitted that it was a very long period of time, being more than a year after the initial injury, that the applicant’s left knee was symptomatic enough to actually obtain some imaging and to be examined by Dr Workman and as a result it was difficult to see that her complaints in relation to the left knee arose as a result of frank injury that occurred on 23 March 2017 and that what was more likely is that, as described by both Dr Hyde Page and Dr Smith, is that there has been a consequential injury to the applicant’s left knee. It was also submitted that to some extent this also accords with the supplementary report of Dr Workman who now seems to suggest that there has been a consequential injury as a result of altered gait.
In relation to the proposed surgery, it was submitted that the applicant is suffering from a consequential left knee condition, being an osteoarthritic condition as well as an associated medial meniscal tear.
The respondent submitted that the surgery proposed by Dr Workman is not reasonably necessary as is not surgery that would alleviate the symptoms of the applicant’s pain, given that there have been recent studies that have found that is the case that it makes no difference to someone who is suffering from osteoarthritis or makes a difference to the pain of someone suffering from osteoarthritis. The respondent relied upon the reasoning and opinion of Dr Smith, who was of the opinion that the recommended arthroscopy is a treatment that has no place in the management of knee osteoarthritis. Dr Smith was of the opinion that the cleanup procedures that are likely to be undertaken by Dr Workman are not beneficial. In his report, Dr Smith essentially summarised and extracted research papers that indicate that in osteoarthritic conditions associated with medial meniscus tear, at least 91% of those with symptomatic osteoarthritis have medial and lateral meniscal tears. Dr Smith report also referred to a study of patients who had osteoarthritis of the knee and it was found that the arthroscopy procedures had made no difference to the pain between the various groups being studied.
The respondent submitted that Dr Bodel in his report commented that Dr Smith had made a good case for not doing the arthroscopy, although Dr Bodel had agreed with the recommendation by Dr Workman for surgery. It was submitted that Dr Smith’s report and opinion should be preferred as the tear of the medial meniscus was found in conjunction with the osteoarthritic condition with osteoarthritic knee pain, and therefore the proposed surgery is not reasonably necessary.
In relation to matters enunciated in Rose v Health Commission (NSW)[1] and also Diab v NRMA Ltd[2], the respondent submitted that all the various factors that need to be considered are fully dealt with in the report of Dr Smith. One of the factors, it was submitted, is the efficacy of the surgery and Dr Smith was clear that for osteoarthritic conditions an arthroscopy has no benefit or no significant benefit. It was submitted that this was also in accordance with Dr Bodel’s expressed caution in relation to the need for this kind of surgery. It was submitted that the scientific literature referred to by Dr Smith found that there was no particular difference in relation to pain between groups studied as to whether they underwent surgery or not. It was also submitted that the scientific literature found that in osteoarthritic conditions 91% of cases studied were associated with a medial meniscal tear, that is in nearly every single osteoarthritic condition there is a medial meniscal tear and it has been found that arthroscopy makes no difference to the symptoms. It was submitted that there was nothing that would take this particular applicant outside of the group that is described in the scientific literature, that is the group with no benefit, and if it was to be suggested that the study should not apply to a particular person such as the applicant then it is because that particular person has characteristics that would not fall within the group that is described in the literature. It was submitted that in this case the applicant falls squarely within the group that is described in the literature and there is nothing to take the applicant outside of that group.
[1] [1986] NSWCC 2; (1986) 2 NSWCCR 32
[2] [2014] NSWWCCPD 72

The respondent also submitted that there was no dispute regarding the cost of the proposed surgery.
The applicant submitted that the opinions of Dr Workman and Dr Bodel are clear that there was a frank injury to the left knee on 23 March 2017 and a subsequent consequential condition that resulted in worsening symptoms.
The applicant submitted that, in relation to the timing of the symptom onset, the applicant had pain in both her foot and ankle and her left knee at the time of the accident on 23 March 2017, with no pre-existing symptoms. The applicant relied upon the opinions of Dr Bodel and Dr Workman as to the reasonable necessity of the proposed surgery. The applicant also relied upon the opinion of Dr Workman who disagreed that there was a diagnosis of tricompartmental osteoarthritis of the left knee and that the only significant abnormality in the medial compartment of the left knee is that of the posterior horn medial meniscal tear which is symptomatic and for that reason left knee arthroscopy was recommended.

FINDINGS AND REASONS

In relation to the applicant’s statements, I do not accept the respondent’s submissions that it was the applicant’s own description that what occurred to her knee was a consequential injury. In my view, the applicant in her statements described both the initial injury to her left knee on 23 March 2017, with persisting pain, and an aggravation of that pain when it became more painful with altered gait and weight-bearing in about September 2018, the latter period of symptoms from September 2018 being consistent with the history noted by Dr Hyde Page. As noted below, there was some inconsistency in the applicant’s statement as to the severity of the initial symptoms in the left knee, and in my view adopting a degree of caution in this regard, the history recorded by Dr Workman, being closer in time to the injury, was more likely to be more accurate and was similar in this regard to the history noted by Dr Bodel. Neither Dr Workman nor Dr Bodel were of the view that for injury to the left knee to have taken place in the manner described on 23 March 2017 there would have been significant symptoms in the period of 24 to 48 hours after the incident, as opined by Dr Smith. I prefer the opinions of Dr Workman and Dr Bodel in this regard, as on balance the weight of the medical evidence supports this view.
The MRI report of 11 December 2018, in which possible “overuse” was noted, and
Dr Hamid’s referral to Dr Workman, and his letter to the GIO of 6 February 2019, were all issued prior to the opinions of Dr Workman and Dr Bodel that the MRI scan showed a tear of the medial meniscus, and hence did not address the possibility of injury to the left knee on 23 March 2017. There were also in evidence reports of Mr Hook, physiotherapist, in which there was a history of injury and treatment of the right ankle and foot, but no history prior to December 2018 in relation to the left knee. Similarly, the clinical records of Dr Hamidi do not refer to the left knee until about November 2018. In my view, the brief description of injury on 27 March 2017 by Dr Hamidi of “accidental fall” was made in the context of a busy GP practice and a brief summary of the accident with a focus on the severe right ankle pain, and hence was a focus on right ankle and foot pain thereafter.
However, I do not accept the respondent’s submission that it was the applicant’s own evidence that the applicant’s symptoms in her left knee developed over time and there was a considerable period of time from the injury of 23 March 2017 until the development of those symptoms. The applicant in her statement of 26 October 2020 said that her GP had “all along…noted in his clinical file that following the work injury of 23 March 2017, I injured my left knee and had symptoms in my left knee. I had continued to complain of pain in the left knee”.
Although the clinical notes do not refer to the left knee prior to November 2018, and in my view the applicant is mistaken that such a record was made, that is not conclusive of whether she did in fact complain of left knee symptoms following the injury of 23 March 2017. The applicant had a significant injury to her right ankle on 23 March 2017, followed by substantial periods of time off work and treatment, including three procedures by Dr Rao.
I adopt a degree of caution in considering the accuracy of clinical notes of Dr Hamidi in respect of the left knee, in circumstances where treatment was provided to the obviously significant injury to the right ankle[3].
[3] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
I also do not give weight to the lack of reference to the left knee in the clinical records prior to November 2018, having particular regard to my view that the history recorded was probably taken for the purpose of treatment of the right ankle as distinct from the forensic exercise in these proceedings of a consideration of complaints of left knee symptoms in the context of an MRI scan in December 2018 which was later interpreted by Dr Workman and Dr Bodel to reveal a tear of the medial meniscus relating to the original injury which was not known to
[4] Mason v Demasi [2009] NSWCA 227 at [2]
[5] Mason v Demasi [2009] NSWCA 227 at [2]
Dr Hamidi prior to November 2018[4]. Moreover, the reference to “overuse” in the MRI scan report, referral letter to Dr Workman, and Dr Hamidi’s letter dated 6 February 2019, noted above, was not inconsistent with the history taken by Dr Workman of an increase in symptoms in September 2018. I am also of the view that the clinical record was more likely to be a summary rather than a verbatim recording[5], and that the recording of the circumstances of the incident as an “accidental fall” was more in keeping with treatment of the obviously significant right ankle injury rather than an investigation of the as yet unknown status of the left knee.
I accept the applicant’s statement that she suffered an injury to her left knee in the incident of 23 March 2017 and that she had symptoms of left knee pain thereafter for which she complained to Dr Hamidi initially and thereafter. However, in my view with the passage of time the applicant has incorrectly recalled that these symptoms were more severe than they may have been, having regard to the history taken by Dr Workman and by Dr Bodel.
Also, the absence of investigations of the left knee until December 2018, following the worsening of left knee symptoms in about September 2018, is in my view in keeping with the less significant symptoms relative to those of the right ankle. In my view, the relatively less severe left knee symptoms arising from the incident of 23 March 2017, in comparison with the significant right ankle symptoms and the later onset of a more painful left knee, together with the focus of significant treatment for the right ankle and foot in the period following 23 March 2017 through until at least February 2018, is explanatory of the period without investigations of the left knee.
In relation to the reports of Dr Hyde Page, there was no mention in his first report (30 January 2019) of a history taken in relation to the left knee. Notwithstanding that absence of history, Dr Hyde Page noted a normal examination of the left knee and an MRI of the left knee of December 2018 that showed no abnormality other than subchondral oedema and “some suggestion of an ACL tear”.
Dr Hyde Page in his report of 7 March 2019 stated that he re-read his original notes and report and that he had not commented on the left knee as he was “only asked to answer questions about right foot and ankle”. He considered the MRI scan of the left knee was normal with “no suggestion of any internal derangement”, corresponding with the normal examination. He noted a history that “the left knee had become painful in the last six months and she attributed this to favouring her right foot and lower limb”. He stated that “she had not actually had any injury to her left knee”.
In my view, the history noted by Dr Hyde Page that the left knee had “become painful” is silent as to any left knee symptoms prior to the six-month period he noted. It is also unclear, in my view, as to whether the statement that the applicant had not had any injury to her left knee was a conclusion drawn by Dr Hyde Page from his history recorded of attributing the left knee pain to favouring the right ankle and foot, or whether this was a paraphrase of the applicant’s history. In my view, the former interpretation is more likely, as Dr Hyde Page later in his report stated “there is no suggestion of any recent or acute left knee injury”. The difficulty here is that this is the extent of the history recorded by Dr Hyde Page in respect of the left knee, in circumstances where he had revisited his notes from an earlier examination and report, for which he conceded he had not been requested to comment in respect of the left knee. Dr Hyde Page from his observation of the applicant did not accept that compensating for the right ankle condition resulted in the left knee condition, and he thought it more likely that the left knee condition was a result of deconditioning and putting on a lot of weight.
In my view, the history recorded by Dr Hyde Page in this regard goes to the history of overuse or consequential condition, although I note that it was his opinion that the left knee symptoms were related to weight gain rather than a consequential condition. Dr Hyde Page did not take a history of the incident on 23 March 2017 with respect to whether or not the left knee was injured, and he conceded that he was not asked to provide comment in relation to the left knee. He was of the view that the MRI scan showed no condition in the left knee suggesting she suffered any significant knee injury or strain. In my view, this was a somewhat qualified opinion in that it does not comment on whether or not there was a tear of the medial meniscus and the relationship, if any, to the history noted. I am not persuaded to otherwise accept the history recorded by Dr Hyde Page, nor his opinion as to the MRI scan of the left knee of 11 December 2018.
Dr Smith in his report of 3 February 2020 noted that he “basically did not have any contemporaneous information regarding her accident of 23 March 2017” and he was “unaware of the nature of the surgery undertaken to her right foot, to date”. Dr Smith took a history of the fall of about one metre onto the right foot on 23 March 2017, noted the right foot was the most severe problem, with the history that “both her knees were injured”.
Dr Smith recorded a period of 10 weeks off work in the moon boot, “then returned to her usual occupation”, and he noted the PRP injections, arthroscopy in February 2018 and continuing problems with the right ankle and foot and suggestion of further surgery to the right foot. This in my view, is a history that is not as detailed as that recorded by
Dr Workman, in which he noted that the applicant “fell heavily onto the right side” and she “ended up twisted around with her bottom on the step above” the step which had collapsed.
Dr Smith in his report of 3 February 2020, provided an annexure in which he summarised scientific studies by Bhattachariyya et al, Boden et al, and Moseley et al. However, his report referred in his reasoning only to the studies of Bhattachariyya et al and Moseley et al.
Dr Smith did not otherwise refer in his reasoning to the study of Boden et al. His summary of the study by Bhattachariyya et al said that it described the results of MRI examination and plain x-ray examination. Dr Smith had regard only to MRI examination and not to x-rays, including his recommended x-ray examinations. Dr Smith also summarised the study by Bhattachariyya et al as describing the results of the MRI and x-ray examinations in a group of person “with clinical symptoms of knee arthritis” and a controlled group of asymptomatic persons. In circumstances where issue has been taken by the treating orthopaedic surgeon that there was relevantly no osteoarthritis, in my view the reliance by Dr Smith on this study assumes the question to be answered, that is, it is a form of circular reasoning. In my view, the circumstances in this matter differ from that study in that the history recorded by
Dr Smith, similar to the history recorded by Dr Workman and Dr Bodel, was of an injury to an asymptomatic left knee followed by an MRI. The Boden et al study referred to symptomatic knees, but Dr Smith did explain how this applied in his reasoning.
There was a suggestion in the respondent’s submissions that the scientific literature said that 91% of osteoarthritic conditions are associated with medial meniscal tear. This, in my view was not the opinion that was provided by Dr Smith when he referred to the study by Bhattachariyya et al. It was Dr Smith’s opinion that it was more likely than not that the changes demonstrated on the MRI scans of the left knee predated her work injury. However, he did not refer to a tear of the medial meniscus in his reasoning and in fact noted that the MRI images of 11 December 2018 demonstrated degeneration in the medial meniscus without any tearing.
In any event, I do not accept the respondent’s suggestion that it is necessary to identify characteristics of the applicant that would not place her within the group that is described in the scientific literature. In circumstances where there is a contest as to whether or not there is in fact osteoarthritis, in my view it was necessary for Dr Smith to identify in his reasons the characteristics that would bring the applicant within the groups studied, having regard to the specific mechanism of the incident, symptomatology, and findings on examination and on investigations. To put it in another way, it was insufficient to refer to a study conducted in 2003, without discussing whether or not such a study has been generally accepted since that time or whether its findings are the subject of criticism or debate, and, more importantly, how such a study could help to explain injury and diagnosis in the specific circumstances of the applicant.
Dr Smith was not provided with, and hence did not comment on, the weight bearing x-rays of 31 January 2020, despite recommending them in his report of 3 February 2020 in relation to his views regarding osteoarthritis of both knees and the left in particular. Dr Workman was of the opinion that the weight bearing x-rays of 31 January 2020 were normal in appearance. The absence of comment by Dr Smith regarding the weight bearing x-rays in my view reduces the persuasiveness of the opinion of Dr Smith.
In my view, the history recorded by Dr Workman, being more detailed, is also of a more significant event in relation to the left knee, which Dr Workman accepted as an injury to the left knee, although consistent with the history recorded by Dr Smith and Dr Bodel, it was the right foot and ankle injury which was severe and the left knee was not regarded by the applicant as a major injury at the time. Dr Smith’s history as to later time off work and treatment of the right ankle and foot was not detailed and not as detailed as Dr Workman. This is significant in my view because it forms part of the consideration of the relatively more severe injury and difficulties that the applicant experienced in 2017 and 2018. Dr Smith did not take a history of difficulties in weight bearing and altered gait due to the right ankle and foot injury, as distinct from noting the brief history recorded by Dr Hyde Page referred to above. Dr Smith took a history only of current difficulties with the left knee, and relied upon the history taken by Dr Hyde Page in relation to the left knee.
Moreover, Dr Smith did not engage with the opinion of Dr Workman that there was no evidence of osteoarthritis based on imaging from the MRI scan showing the medial compartment to be essentially normal from an articular cartilage point of view. I prefer the opinion of Dr Workman in this regard, the reasons noted above, and as Dr Workman was specific in identifying this aspect in terms of his diagnosis of a symptomatic medial compartment including a tear of the medial meniscus and the treatment recommended.
Dr Workman was of the view that the applicant suffered a frank injury to her left knee on 23 March 2017, with aggravation over time from altered gait. He was of the opinion that this was a symptomatic medial compartment, which was not osteoarthritic. He also was of the view that the MRI showed that there was a degenerative tear of the medial meniscus, and he identified this as requiring treatment following the frank injury and subsequent aggravation. This in my view was clarified and supported by Dr Bodel, who was of the view that the applicant sustained injury to the left knee on 23 March 2017 with a tear of the medial meniscus.
Dr Smith took issue that there was injury to the left knee on 23 March 2017 as he would have expected significant symptoms in the 24 to 48 hours thereafter. The history that was taken by both Dr Workman and Dr Bodel, of symptoms in the left knee that were relatively minor compared to the right ankle following the incident of 23 March 2017, was considered by both doctors in their opinion that the applicant did sustain an injury to her left knee on 23 March 2017. I prefer the opinions of Dr Workman and Dr Bodel in this regard as, first, Dr Workman is the treating orthopaedic surgeon who has examined the applicant on a number of occasions, including at a time earlier than that of Dr Smith, and, second, the balance of expert medical opinion, that is Dr Workman and Dr Bodel, support this view.
In relation to the consequential left knee condition, both Dr Workman and Dr Bodel were of the opinion that the frank injury of 23 March 2017 to the left knee was aggravated over time by the altered gait and weight bearing on the left knee as a result of the injury to the right ankle. That is, the aggravation of the applicant’s left knee condition was consequential to the injury to her right ankle on 23 March 2017. I prefer the opinions of Dr Workman and Dr Bodel to those of Dr Hyde Page and Dr Smith. As noted above, I have not accepted the opinion of Dr Hyde Page that the applicant’s painful left knee symptoms from September 2018 were more likely due to an increase in weight. Also, as noted above, I have not accepted
Dr Smith’s opinion that the applicant’s left knee condition is unrelated to the injury of 23 March 2017, that is by way of injury to the left knee at that time. I also do not accept
Dr Smith’s opinion that the applicant’s right ankle and foot injury is not a substantial contributing factor to her left knee osteoarthritis, for the reasons noted above.
I accept the opinion of Dr Workman that the applicant suffered a frank injury to her left knee on 23 March 2017 and that over the course of her treatment for the right ankle injury over a long period of time she had to walk with an altered gait and non-weight bear for long periods of time, which led to additional aggravation of the initial injury due to increased load and demand on the left knee.
I have also had regard to the applicant’s statement that she had no injuries to her left knee prior to the accident of 23 March 2017 and also that there was no history of any left knee symptoms prior to 23 March 2017. There was no dispute as to these matters.
The applicant submitted that a common sense view of causation should be adopted with respect to the injury of 23 March 2017 to the left knee and the subsequent consequential left knee condition resulting from the right ankle injury of 23 March 2017. I accept that submission[6].
[6] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796
In my view the applicant on 23 March 2017 fell a distance of one metre and sustained a significant injury to her right ankle, as well as injury to her left knee which was not the focus of attention by the applicant or her treatment providers until about November 2018, after the left knee became more painful from about September 2018.

In my view, the applicant sustained over time from 23 March 2017 a left knee condition consequential to the right ankle injury on 23 March 2017, being aggravation of the left knee condition resulting from altered gait and weight bearing on the left knee due to the right ankle injury.
I find that the applicant sustained injury to her left knee on 23 March 2017, such injury including a tear of the medial meniscus, and she sustained a consequential left knee condition by way of aggravation of the injury of 23 March 2017 over time on the basis of increased load and demand on her left knee as a result of her right ankle and foot injury.
In my view, based upon my acceptance of the opinions of Dr Workman and Dr Bodel, the applicant sustained a frank injury to her left knee on 23 March 2017 within the meaning of section 4(a) of the Workers Compensation Act 1987 (the 1987 Act). Dr Bodel’s opinion was that the applicant sustained a frank injury to her left knee on 23 March 2017. Dr Workman did not specifically address this issue, although in my view his opinion taken as a whole that there was a frank injury on 23 March 2017 would lend support to the opinion of Dr Bodel.
I have preferred the opinion of Dr Workman that in respect of the medial compartment of the left knee there was no osteoarthritis and that a frank injury was sustained on 23 March 2017. I find pursuant to section 9A of the 1987 Act that the applicant’s employment with the respondent on 23 March 2017, the frank injury, was a substantial contributing factor to the injury to her left knee.
In relation to the issue whether the proposed left knee arthroscopy is reasonably necessary,
I note that both Dr Workman and Dr Bodel did not disagree with Dr Smith that an arthroscopy was not beneficial or appropriate in the treatment of knee osteoarthritis. However,
Dr Workman was of the view that the arthroscopy was for the treatment of the symptomatic medial compartment, significantly being a tear of the medial meniscus, not for treatment of osteoarthritis which in his view was not present. As noted above, I have preferred the opinion of Dr Workman in relation to the diagnosis. Additionally, Dr Bodel was of the opinion that the proposed treatment was “reasonable and necessary”, although it was to be done cautiously and carefully with evidence of a mechanical cause for pain, the torn medial meniscus, then it can be helpful in the short to medium term.
It was submitted by the respondent that arthroscopy makes no difference to the symptoms where there is a medial meniscal tear, having regard to the opinion of Dr Smith and the scientific literature that he referenced. I do not accept this submission. First, Dr Workman and Dr Bodel have identified specific reasons why the proposed surgery is reasonably necessary, being a diagnosis of a torn medial meniscus without osteoarthritis by
Dr Workman, and a mechanical cause for the pain due to the torn medial meniscus that was discussed by Dr Bodel. Second, I do not accept the applicability of scientific literature in this case, for the reasons identified above. I prefer the opinions of Dr Workman and Dr Bodel in this regard.
The respondent did not dispute reasonable necessity based upon the proposed cost of the procedure. The were no other submissions in relation to the matters noted in Rose v Health Commission (NSW)[7] and also in Diab v NRMA Ltd[8]. In my view, having regard to the opinions of Dr Workman and Dr Bodel, the proposed treatment is appropriate; the alternative treatment proposed by Dr Smith was in relation to the treatment of osteoarthritis, not for a tear of the medial meniscus; there was no other alternative treatment proposed; the proposed treatment can be helpful in the short to medium term if it is done carefully, although it is not without risk as identified by Dr Bodel; and the proposed treatment is accepted by
[7] [1986] NSWCC 2; (1986) 2 NSWCCR 32
[8] [2014] NSWWCCPD 72
Dr Workman and Dr Bodel.
I find that the left knee arthroscopy proposed by Dr Workman is reasonably necessary as a result of both injury to the left knee on 23 March 2017 and also a left knee condition consequential to the injury to the right ankle on 23 March 2017.

[2022] NSWPIC 5

10 January 2022