Grech v PRP Diagnostic Imaging Pty Limited
[2021] NSWPIC 35
•22 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grech v PRP Diagnostic Imaging Pty Limited [2021] NSWPIC 35 |
| APPLICANT: | Julie Grech |
| RESPONDENT: | PRP Diagnostic Imaging Pty Limited |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 22 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Disputed injury to the right hip and consequential conditions to lumbar spine and knees; disputed claim for proposed bilateral knee replacement surgeries and lumbar fusion surgery; Held- award for the applicant pursuant to s4(b)(ii) of the Workers Compensation Act 1987 in relation to injury to the right hip, finding of altered gait and development consequential conditions in lumbar spine and knees; award for applicant in relation to proposed surgeries. |
| DETERMINATIONS MADE: | 1. Pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 the applicant sustained injury to her right hip with her employment with the respondent being the main contributing factor to the aggravation of the underlying disease. 2. That the right hip replacement surgery undertaken on 5 December 2018 was reasonably necessary treatment as a result of the right hip injury with a deemed date of injury of 13 December 2016. 3. That the right hip injury caused the applicant to suffer from altered gait. 4. That as a result of the right hip injury and the altered gait, the applicant has sustained consequential conditions in her knees in the form of aggravation and exacerbation of the underlying osteoarthritis. 5. That the proposed bilateral knee replacement surgeries, and associated costs, are reasonably necessary treatment as a result of the work-related injury with a deemed date of injury of 13 October 2016. 6. That as a result of the right hip injury and the altered gait, the applicant has sustained a consequential condition in her lumbar spine in the form of aggravation and exacerbation of the underlying osteoarthritis. 7. That the proposed L4-S1 lumbar spinal fusion surgery, with decompression of the nerve roots with fixation, and associated costs, is reasonably necessary treatment as a result of the work-related injury with a deemed date of injury of 13 October 2016. 8. The respondent is to pay the costs of the proposed bilateral knee surgeries and associated costs at the applicable workers compensation gazetted rates. 9. The respondent is to pay the costs of the proposed lumbar spine fusion and associated costs at the applicable workers compensation gazetted rates. |
STATEMENT OF REASONS
BACKGROUND
Julie Grech was employed with the respondent, PRP Diagnostic Imaging Pty Limited, as a receptionist and courier driver delivering radiological scan films to various doctors’ practices. In these proceedings Ms Grech is seeking compensation pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) for proposed bilateral knee replacement surgeries and associated costs and for a lumbar spine fusion and associated costs.
In her Application to Resolve a Dispute (ARD) she relies on a date of injury of 13 October 2016 and states the following in relation to the description of injury:
“Date of injury- In the alternate, nature and conditions of employment from 23 February 2012 to 11 May 2018.
Development of an/or aggravation, acceleration, exacerbation or deterioration of disease in the right hip, low back and both knees as a result of the nature and conditions of her employment which required the applicant to repetitively get in and out of her vehicle between 90-100 times per shift.
Following the surgery to the right hip, the applicant experienced further symptoms/aggravation of the left knee, right knee and low back.”
At the Arbitration Hearing Ms Grech’s counsel amended this pleading to add:
“Following the injury to the right hip the applicant suffered a consequential condition affecting her knees and back. The consequential condition in relation to the knees is as a result of altered gait pursuant to the hip condition an unnatural load was placed on each knee causing an aggravation of arthritis in those body parts.”
The date of injury of 13 October 2016 was confirmed to be a deemed date of injury.
The respondent’s workers compensation insurer, Employers Mutual NSW Limited, issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 29 June 2018 in which it disputed liability for the right hip and lumbar spine on the basis Ms Grech’s employment with the respondent was not the main contributing factor to her injury[1].
[1] ARD p 24.
However, in a further section 78 notice dated 16 December 2019 the insurer disputed liability for claims for compensation relating to the lumbar spine and right knee. In that notice it is stated that “EML has accepted liability for the right hip injury”[2]. It is also stated that the decision to dispute liability for the lumbar spine and right knee “will not effect [sic] your weekly payments as it pertains to your right hip injury”[3].
[2] Reply p 25.
[3] Reply p 26.
In the review notice dated 31 July 2020, EML adhered to the decision made on 16 December 2019 and advised, inter alia, “On 21/11/2018 at Arbitration Hearing, the insurer accepted liability for the right hip injury.”[4]
[4] ARD p 29 and Reply p 35.
The Certificate of Determination- Consent Orders in matter 5180/18 dated 23 November 2018 state the following:
“By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:
1.The Application to Resolve a Dispute is discontinued and I dispense with the necessity for the applicant to lodge a Notice of Discontinuance.
2.On a voluntary basis the respondent will pay the applicant’s s60 expenses related to treatment of her right hip including proposed hip surgery as per the gazetted rates.
3.On a voluntary basis the respondent will pay weekly benefits to the applicant as follows:
a.$415.01 per week from 11 May 2018 to 21 November 2018 agreed to total $11,500”[5].
[5] ARD p 22.
Notwithstanding these dispute notices and Consent Orders, the respondent at the Arbitration Hearing in this matter disputed that there was injury to the right hip as a result of Ms Grech’s employment with the respondent. It was stated that previously liability had been accepted for the right hip on a voluntary basis and so no admission had been made relating to injury having been sustained to the right hip. Liability for the alleged consequential conditions to the knees and back was also disputed, as was whether the proposed surgeries are reasonably necessary treatment as a result of injury sustained in the course of employment with the respondent.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference/ arbitration hearing before me on 18 February 2021. Mr Craig Tanner, counsel, instructed by Ms Basema El Masri, solicitor, appeared for Ms Grech, who was present. Mr Allen Parker, counsel, instructed by
Mr Christopher Michael, solicitor, and Ms Jenny Doyle from the insurer EML appeared for the respondent. The proceedings were conducted by telephone due to the COVID-19 situation.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents excepting that Dr Powell’s report was only admitted as to its history due to the operation of the then Regulation 44 of the Workers Compensation Regulation 2016; and
(c) Application to Admit Late Documents (AALD) filed by the respondent dated 12 January 2021 attaching the report of Dr Rowe dated 18 November 2020.
Oral Evidence
There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Ms Grech has provided several statements including those dated 24 September 2018 and 30 October 2018. In her statement dated 24 September 2018 she advises that she commenced work with the respondent on 23 February 2012 as a casual courier. She says she performed this work in conjunction with her contract courier job with Histopath Diagnostic Specialists until 16 October 2013. In August 2013 she had an arthroscopic procedure on her left knee to repair a torn medial meniscus. She says after that work she left the job with Histopath. On 16 October 2013 she commenced permanent part-time employment with the respondent. She says this role was to work at the back-desk reception and included courier work when required from the Hornsby rooms of the respondent. She worked four days per week, a 30-hour week.
She describes her duties as a receptionist, and she estimated she would get up and down from her seat at least 80 times to check in patients. She says in about July/August 2016 the two main couriers took leave. Ms Grech says she performed this courier work with another casual courier. She says on 3 August 2016 she commenced this courier work on average for three days per week and she did this for a block of 10 weeks. She says from about mid-September 2016 she first noticed while she was driving and delivering films, she had an ache in her right groin area, the right side of her lumbar spine, right hip and right knee. She says she had not previously had this type of pain to her hip, groin and back. She said she noticed the pain was worse when her leg was extended to accelerate or break. She says the pain gradually worsened.
Ms Grech says on 13 October 2016 she told her manager, Gill Arnamnart, that she could no longer do the courier work as it was killing her. She went next door to the Edgeworth Medical Centre and saw Dr Evans who sent her for MRI scans of her pelvis, right hip and right knee. She had these scans done at her workplace that day. She says she had not had any hip problems previously or scans of that region.
She previously had a right shoulder injury and she was seeing Michael Hauswith, physiotherapist, for that injury and she says she showed him her hip scans and he gave her hip exercises to do. She says she continued to work in the respondent’s office but no longer did the courier work.
Ms Grech says the February 2015 lumbar spine scan was done to test a new machine at her work and she had no specific pain at that time, and she was not referred by a doctor to have that scan done. That scan, to which I have referred below, says the referring doctor was
Dr Richard Perry, who was the radiologist at the respondent’s Hornsby rooms. However, the report says a copy was sent to Dr Ison and has the history of back pain. I find some degree of caution needs to be exercised when relying on Ms Grech’s evidence as in this first statement she does not give all details about her prior medical treatment. For instance, in this statement she goes into quite a bit of detail about her treatment after October 2016 but does not mention seeing Dr Savvas, rheumatologist, in 2014. I have summarised this report below but Ms Grech does not refer to the fact that Dr Savvas in her 2014 report says that she had explained to Ms Grech that she is looking at total knee replacement surgery and lumbar spinal fusion in the future[6].[6] ARD p 394.
Ms Grech in this statement in several paragraphs says in the courier run she would have 40 to 60 stops on any given day and she would have to twist/pivot on her right leg and hip to exit the motor vehicle carrying the weight of the films.
In her statement dated 30 October 2018 she corrects this information about the number of runs she did per day, having had access to the run sheets. She lists the stops and says the figures average 29.4 stops for each day worked. She also concedes that she did discuss with Gill Arnamnart arthritis but says this was to do with her knees and occasionally her back before October 2016. Ms Grech also cites the records of Dr Evans for 13 October 2016 as supporting her version that the pain first started in her right groin and right hip while doing courier work getting in and out of the car.
Dr Savvas
Dr Penny Savvas, rheumatologist, reported to Ms Grech’s general practitioner, Dr Sharada Devadas at the Wellness Clinic, on 29 October 2014[7]. She notes that Ms Grech’s mother has rheumatoid arthritis and osteoarthritis and a brother who also has rheumatoid arthritis. At the time of her examination Ms Grech was complaining of pain in her knees and feet and bilateral ankle pain and plantar fasciitis. Examination of the knees revealed crepitus, left more than the right and associated wasting of the quadriceps muscle. There were no effusions in the knees but there were non-tender Baker’s cysts. It was noted her lumbar spinal movements were globally reduced.
[7] ARD p 92.
Dr Savvas refers to a CT scan of the lumbar spine in 2005 showing bilateral pars defects at L5 with a 9mm spondylolisthesis and an x-ray of her right knee in 2014 showing moderately severe osteoarthritis in the medial compartment patello-femoral joint. The doctor also refers to the presence of osteoarthritis in her left ankle and left first MTP joint as well as bilateral first carpometacarpal joints. Dr Savvas had a history of Ms Grech injuring her knee in a fall and says she then developed difficulty getting in and out of a car and an MRI showed she had a meniscal tear. She had an arthroscopy of the left knee, which helped with the locking. Dr Savvas adds that Ms Grech had also been diagnosed with arthritis in the right knee and she sought an opinion regarding a right knee arthroscopy and was told that it may make her osteoarthritis worse.
Dr Savvas stated that she had explained to Ms Grech that she is looking at total knee replacement surgery and lumbar spinal fusion in the future[8].
[8] ARD p 394.
Lumbar MRI scan 3 February 2015
On 3 February 2015 an MRI scan was performed on Ms Grech’s lumbar spine. The history on the radiologist’s report was “back pain”. The finding was spondylolisthesis with spondylolysis at L5 and a broad-based disc bulge at L4/5. However, the report seems to have an inconsistency because in the body of the report it is stated when referring to the L4/5 level that “there is no focal left posterolateral disc herniation in the left exit foramina” but in the conclusion the word “no” is missing[9].
[9] ARD pp 103 and 246 and Reply p 1.
Castle Hill Medical Centre records
Dr Sybil Johnstone, general practitioner from the Castle Hill Medical Centre, was treating Ms Grech in 2015. On 11 April 2015 the doctor records the history that Ms Grech has had steroid injections in both knees and has arthritis in her hands. It is noted that Dr Savvas and surgeons have told Ms Grech that she will need total knee replacement at some stage, also back surgery. She was unsure of the diagnosis, but it was a “long-standing problem”.
On 11 January 2017 Dr George Kostalas records that Ms Grech has extensive osteoarthritis and was to take Mobic instead of Voltaren and she would return to hydrotherapy. On 15 March 2017 Dr Kostalas records that Ms Grech has had pain in her back, hip and knees for a few months and she was finding it difficult to drive for long periods because of right hip pain. The doctor noted that she had seen another local medical officer and had scans. He conducted a physical examination and found no abnormality on examination of the right knee but that the right knee has osteoarthritis on MRI and the doctor states “Known for many years.” Her back examination did not reveal tenderness but her right hip was painful on external rotation in flexion. Dr Kostalas noted that osteoarthritis in the hip had been confirmed on MRI scan. Hip replacement was discussed but Ms Grech wanted to try steroids into the right hip as she wished to go on a cruise. Dr Kostalas supported this as he states it would help with diagnosis to see if the hip was the main problem. The doctor also gave a referral for steroid injection into right knee but writes that it was only to be done if the right hip injection failed to relive the knee pain[10].
[10] ARD p 397.
On 16 March 2017, at the request of Dr Kostalas, a CT guided injection of the right hip was performed[11].
[11] ARD p 99.
On 11 May 2017 Dr Joanna Guy saw Ms Grech and recorded she had right hip pain over the last 6-9 months, which was gradually worsening, and the pain wakes her at night, at times. She had pain after walking 200-300 metres. It is also noted that she feels worse than six months ago. An x-ray and ultrasound of the right hip on the referral from Dr Guy was performed on 18 May 2017 with the clinical information on the radiologist’s report stating “worsening right hip pain”. Moderate degenerative changes were found in the right hip and the radiologist noted mild degenerative changes in the left hip[12].
[12] ARD p 98.
Quite a few consultations at this practice relate to Ms Grech’s shoulder treatment. On 12 August 2017 Dr Johnstone notes she was getting recurrence of left sciatic pain[13].
[13] ARD p 401.
Edgeworth Medical Centre records
The typed clinical consultation records from this practice contain nothing of relevance. There is a handwritten record for 13 October 2016 which refers to getting in and out and “1/12 aching ® knee and ®sacroiliac jt. For MRI knee + hip”[14]. The corresponding scan undertaken on 13 October 2016 is addressed to Dr David Evans, Edgeworth Medical Centre and a copy was sent to Dr Ison.
[14] ARD p 409.
Dr Ison
Dr Ison is a general practitioner from The Wellness Clinic, Baulkham Hills, who treated
Ms Grech. On 13 April 2018 she forwarded Dr Lim, Workers Doctors, a copy of her clinical notes and in the covering letter advised she had not included reports from the orthopaedic surgeons Dr Mohammed Baba dated 18 May, 15 June and 27 July 2016 and from Dr David Duckworth dated 13 July, 15 August, 29 August, 19 September, 3, 12 and 24 October and 21 November 2017 and 20 February 2018[15]. It seems Dr Baba and Dr Duckworth were treating her shoulder injury.[15] ARD p 182.
In her patient health summary under the heading “active past history” Dr Ison records that
Ms Grech suffers from osteoarthritis to her knees, ankles, feet, shoulders, hands, back, hips and has previously consulted rheumatologist Dr Penny Savvas. She also records Ms Grech has lumbar radiculopathy with impingement right L5 and S1 nerve roots on MRI scans in 2015 and 2017 and she has degenerative lumbar disc disease and spondylolisthesis[16].[16] ARD p 184.
Copies of an x-ray of the left knee dated 21 June 2013[17] and MRI scan of the left knee dated 2 August 2013[18] and MRI scan of the right knee and x-ray of the right ankle dated 16 April 2014[19] are contained in her records. These are somewhat difficult to read, but the right knee scan revealed moderate medial compartment osteoarthritis. There was a horizontal to oblique tear within the body and posterior horn of the medial meniscus extending to the inferior meniscal surface. There was moderate medical compartment chondral wear with focal full thickness chondral loss at the weightbearing surface of the medical femoral condyle. There was also moderately severe retropatellar chondral wear with focal full thickness chondral loss to the medial apex and paramedian and medial retropatellar facet. Moderate chondral wear was present at the medical trochlea with mild chondral wear at the lateral trochlea.
[17] ARD p 202.
[18] ARD p 203.
[19] ARD p 204.
On 20 March 2015 Ms Grech underwent an ultrasound guided injection of the right knee. A copy of the report says this was on the referral of Dr Savvas and copies were sent to Dr Ison and Dr Devadas.[20] On 24 March 2015 an injection was performed in the left knee[21].
[20] ARD p 211.
[21] ARD p 212.
Dr Ison’s surgery consultation notes before the Commission commence on 2 February 2016 and some inflammation was noted due to osteoarthritis, the parts of the body affected are not recorded. However, it seems that Dr Ison may have been treating Ms Grech before 2 February 2016 because, as noted above, the radiology reports are addressed to her and the treating specialists.
On 5 May 2016 it is recorded that on 30 April 2016 Ms Grech was standing on a chair at home and fell backwards onto her right shoulder and was taken by ambulance to Westmead Hospital and was operated on by Dr Baba on 2 May 2016. She was to have her arm in a sling for six weeks and was to be off work for three months. The notes also state “low back examined given some pain: soft tissue bruising otherwise NAD”[22].
[22] ARD p 191.
On 13 October 2016 an MRI scan was performed of the right hip and pelvis. The clinical note on scan report states “aching groin and lateral right hip pain.” It was found that there was mild to moderate osteoarthritis in the right hip joint with some effusion and mild synovitis[23]. An MRI scan was also done on the same day of the right knee with the clinical note on the report stating “Aching right knee. Worse in the last month”. Moderate osteoarthritis in the medial compartment was found with an oblique cleavage tear in the meniscus extending to the free edge and mild to moderate osteoarthritis at the patellofemoral joint and some joint effusion.[24] Both scans were performed on referral from Dr David Evans and copy of the reports were also sent to Dr Ison, and another copy of the scan report was sent to
Dr Sullivan[25].[23] ARD pp 101, 222, 368 and 424.
[24] ARD pp102 and 223.
[25] ARD p 407.
On 28 February 2017 an MRI lumbar spine scan was performed on the referral of Mr Michael Hauswith, physiotherapist, and copy sent to Dr Ison. The radiologist noted there had been no significant change since 3 February 2015[26]. There were bilateral L5 pars defects with grade 2 spondylolisthesis and severe degenerative disc changes with an impingement of the right L5 nerve root from the L4/5 disc and impingement of the S1 nerve root.
[26] ARD pp 276 and 367, and see p100.
On 25 September 2017 Dr Ison records the reason for the visit was to discuss results and reference is made to MRI lumbar spine scans and mobility parking application. The diagnosis was stated as “degenerative lumbar spinal disease evidenced on radiology reports 2015 and 2017”. She was to continue physiotherapy/chiropractic treatment for musculoskeletal physical therapy and was prescribed paracetamol and Voltaren for osteoarthritis pain[27]. A copy of the MRI scan report is in Dr Ison’s notes[28]. A copy of the parking application says it is necessary as Ms Grech suffers severe osteoarthritis[29].
[27] ARD p 193.
[28] ARD p 223/4.
[29] ARD p 254.
On 30 October 2017 Dr Ison records an occupational assessment was done for the employer. An email from Ms Grech to the doctor dated 27 October 2017 is included in the records saying that Ms Grech has been advised she can return to work from 13 November 2017, but she would like to transition back two days per week initially. She says she has advised work that her back/hip was also an issue for this request together with reduced iron levels after the shoulder surgery. A questionnaire was completed by Dr Ison on 3 November 2017 regarding the return to work and in response to a question about Ms Grech’s back/hip pain Dr Ison wrote “there is no current plan for back or hip surgery. Certainly that has not been my recommendation. Julie experiences mostly low back pain, worst when driving, best when resting. Analgesics required is Paracetamol & NSAIDS daily”.[30]
[30] ARD p 266.
On 8 March 2018 Dr Ison noted she had recovered well following revision shoulder surgery and from blood transfusion for iron deficiency anaemia. She adds “satisfactory employment at PRP Hornsby 2 days per week (Mondays and Fridays). Her presenting complaints were “lots of musculoskeletal pain issues”[31]. The diagnosis was “degenerative osteoarthritis, degenerative lumbar disc disease exacerbation by morbid obesity”. Dr Ison recorded examination findings of “lumbar spine exam nil revealing by ROM, SLR, palpation, some gluteal tight spots, no active trochanteric bursitis, reduced ROM right hip cf left hip c/w known OA”[32]. Dr Ison recommended a consultation with Dr James Sullivan. A copy of the referral is dated 15 March 2018 and seeks an opinion on further management of Ms Grech’s “chronic hip and knee pain”. The history is supplied to Dr Sullivan that Ms Grech has osteoarthritis in the knees, ankles, feet, shoulders, hands, back, hips and that she has consulted Dr Savvas. Dr Ison also mentions lumbar degenerative disease and radiculopathy with impingement of the right L5 and S1 nerve roots being shown on scans in 2015 and 2017[33].
[31] ARD p 197.
[32] ARD p 198.
[33] ARD p 242/243.
On 10 April 2018 Dr Ison noted Ms Grech was to have a right hip replacement and had an antalgic gait and was using a stick with her left hand[34].
[34] ARD p 200.
Dr Sullivan
Dr James Sullivan was sent copies of MRI Right knee scan dated 13 October 2016, which was requested by Dr Evans[35]. This has been described above.
[35] ARD p 407.
Dr Sullivan reported to Dr Katrina Ison on 29 March 2018[36]. Dr Sullivan advises that
Ms Grech was really struggling with right hip pain, and she could barely walk up and down stairs. He said the hip had been getting worse over the last 12 months. He found her gait to be markedly antalgic on the right side, the hip was irritable and stiff. He records restricted range of movement. Dr Sullivan recommended a hip replacement. Various scans were performed at the request of Dr Sullivan on 29 March 2018 including of both hips. Severe arthropathy was noted in the right hip and it is also recorded that there is moderate osteoarthritis in the left hip joint[37]. An x-ray of the pelvis and right hip was also performed on 29 March 2018, with the right hip showing features of quite gross osteoarthritis with joint space loss, osteophytes, sclerosis and subchondral cysts. The radiologist noted that there were less marked changed on the left[38].[36] ARD p 91.
[37] ARD pp 97 and 366.
[38] ARD p 96.
An x-ray was also performed on the lumbar spine showing moderate facet arthropathy at L3/4 and L4/5 as well as the bilateral pars defects at L5 and grade 2 spondylolisthesis of L5 on S1[39].
[39] ARD pp 238 and 365.
Dr Lim
Dr Eric Lim from the Workers Doctors commenced to treat Ms Grech as her nominated treating doctor on 11 April 2018. In a report of that date he refers to the history that on Thursday 13 October 2016 Ms Grech when at work suffered a hip/back injury from driving as a courier getting in and out whilst covering shifts for other couriers who were away. He states that underlying degenerative changes were aggravated and she now needs a hip replacement[40].
[40] ARD p 360.
Dr Lim has also provided a report to Ms Grech’s solicitors dated 18 October 2018[41]. Dr Lim expresses the view in both reports that the mechanism of her right hip injury was attributable to her work for the respondent as a direct result of performing the work as a receptionist and courier. He notes the work as a courier involved getting in and out of vehicles. He says he does not have medical evidence to suggest an alternate mechanism of injury.
[41] ARD p 76.
Dr Lim noted Ms Grech walked with a limp and used a walking aid. On examination he found range of motion to be restricted due to pain. He diagnosed a right hip injury, lumbar spine radiculopathy (aggravated) and an adjustment disorder. He recommended a multidisciplinary pain management program and said she would require a right hip replacement.
Dr Randhawa
Dr Sunny Randhawa is a hip, knee and trauma surgeon. He commenced treating Ms Grech on 22 May 2018 at the request of her general practitioner, Dr Lim. In the report dated 22 May 2018 the doctor advised Dr Lim that she had been progressively getting increased right hip pain over the last few months. He refers to her courier driving work with repeated heavy lifting and getting in and out of the vehicle. He says this required increased load and twisting, especially of the right hip. On examination he found she walked with a very antalgic gait and her right sided Trendelburg test was positive and her right hip was very irritable and stiff. The right leg was shorter by 1cm and the left hip was unremarkable. Dr Randhawa added “[t]here is no doubt that that many years of courier work and pivoting on the right hip has taken its toll and primarily the cause of her osteoarthritis. The fact that her left hip is relatively spared is a clear sign of this.” He recommended a hip replacement.
Dr Randhawa has also supplied a report dated 26 September 2018 to Ms Grech’s solicitors[42]. He says Ms Grech was referred for ongoing right hip pain and stiffness.
Ms Grech informed the doctor that repeated twisting and carrying due to her work as a courier driver for the respondent had caused the severe damage to her right hip.[42] ARD p 69.
On examination Dr Randhawa found Ms Grech had a “very antalgic gait to the right hip” and the right hip joint was very irritable. X-rays dated 29 March 2018 confirmed the presence of severe right hip osteoarthritis.
Dr Randhawa states that there is no doubt in his mind that Ms Grech’s incapacity is due to her long term courier work and the constant pivoting on her right hip whilst getting in and out of the courier vehicle has taken its toll on her hip. The doctor adds “This is especially evident as the left hip which doesn’t take any load during the pivoting out of the car, has minimal degeneration.” The doctor noted that Ms Grech did not have any other arthritis in her body[43].
[43] ARD p 69.
Dr Randhawa felt that a right hip replacement was reasonably necessary and related to her employment with the respondent. Dr Randhawa added that he was in complete disagreement with Dr Powell and stated that Dr Powell’s opinion conveys that he is out of touch with contemporary orthopaedics and clinical practice[44].
[44] ARD p 70.
Dr Powell
Dr Richard Powell reported to the insurer on 5 June 2018[45]. Dr Powell has a history about
Ms Grech’s duties for the respondent as including courier driver work, performing multiple deliveries and getting in and out of the car many times in a day. He notes that the courier work started in about March 2016 and in September 2016 Ms Grech became aware of pain involving her right groin and posterolateral right hip, radiating to her right knee and some lower back pain. The doctor notes she was referred for MRI scans of her right knee, right hip and pelvis, which showed osteoarthritis.[45] ARD p169 and Reply p 2.
Dr Powell refers to Dr Soo, orthopaedic surgeon, who he says advised Ms Grech in April 2018 that her symptoms were related primarily to her right hip rather than her lower back.
Dr Powell also records that Dr Jim Sullivan diagnosed right hip osteoarthritis and recommended a total hip replacement, as has Dr Randhawa.Dr Powell records Ms Grech’s current symptoms. He notes she experienced chronic intermittent lower back pain in the past, but had no prior injuries involving the right hip.
The rest of Dr Powell’s report has not been summarised because it was only admitted into evidence as to its history.
Dr Rao
Dr Rao is a neurosurgeon and spine surgeon who has treated Ms Grech. In his report dated 3 June 2019 to the insurer he advised that Ms Grech has new pathology post the 2016 injury which was causing compression of the L5 nerve root in the lateral recess with worsening of the compression in the foramina. Dr Rao sought approval to undertake an L4/S1 posterior lumbar interbody fusion, decompression of the nerve roots and fixation[46].
[46] Reply p 9.
Dr Rao has also provided a medico-legal report for Ms Grech dated 11 February 2020. He referred to his review of her on 30 May 2019. This was five months after the right hip replacement surgery. Dr Rao took a history that Ms Grech had chronic back pain following a work-related injury in 2016. At the time of his review Dr Rao says that Ms Grech reported ongoing back pain with right leg pain, which started after the injury but worsened in 2017. He was informed that Ms Grech’s walking had significantly worsened since the 2016 injury and she has been using a walking stick since. Her pain was bilateral and in the L5 distribution causing ache and numbness[47].
[47] ARD p 52.
Dr Rao attributed Ms Grech’s lumbar and radicular symptoms to degenerative changes at the L4/5 and L5/S1 levels. Dr Rao stated that MRI showed new symptomatology post 2016 with L5 nerve root compression in the lateral recess with worsening of the compression in the foramina. The MRI scan was undertaken on 12 June 2019[48]. He notes that as the symptoms had progressed in the last three years with neurological deficit, which was not present prior to the initial injury, a L4-S1 posterior lumbar interbody fusion and decompression of the nerve roots with fixation, was recommended.
[48] ARD p 104.
Dr Rao expresses the opinion that conservative management is unlikely to improve
Ms Grech’s symptoms and that her injuries and her current state are mainly related to her employment. Dr Rao elaborates that back pain has been present ever since the injury however her hip was the main symptomatic region initially and, since the hip replacement was performed, the back issue has become more prominent. Dr Rao also says that as the hip has been replaced more stresses are being put on the back.
Dr Soo
Dr Soo is a shoulder and knee surgeon. He has treated Ms Grech and supplied reports dated 19 April 2018[49] and 7 November 2019 to Dr Lee.[50] In the earlier report Dr Soo records that Ms Grech had been doing courier work since July 2016 which involved delivering hard copy of films and 40 -50 stops getting in and out of the car. He notes her history that after one month she had right lower back pain, right hip and groin pain and that she did not have this pain prior to the courier work. Dr Soo lists her symptoms and says she uses a walking stick. Her lower back pain was constant and occasionally radiates down the back of her leg to her calf. On examination she had excellent pain free flexibility to her lumbar spine. A Trendelburg test was positive to the right hip. She had a negative straight leg test. Dr Soo found Ms Grech had severe debilitating right hip/groin pain that is directly related to her severe right hip osteoarthritis. He also stated she has lower right back pain that appears localised over the right sacroiliac joint and possibly related to sacroiliitis. He added that even though the MRI lumbar spine scan showed marked degenerative changes and nerve root impingement, it clinically does not appear to be symptomatic.
[49] ARD p 73.
[50] ARD p 82 and Reply p 22.
In the November 2019 report Dr Soo advised that Ms Grech’s right knee pain is constant with swelling and locking, and the knee gives way. An MRI scan showed advanced tricompartmental osteoarthritis[51]. He states that the “left knee is also worsening as a result of her altered gait and over-reliance on the left leg.” Dr Soo adds that the knee symptoms stops Ms Grech from doing her normal day to day activities and sleeping at night-time. An MRI of the left knee also shows advanced tricompartmental osteoarthritis.
[51] A copy of the scan is at ARD p 110.
Dr Soo discusses the treatment options, including conservative measures, but he concludes that further non-surgical measures are not going to significantly help her symptoms given the severity of her arthritis and he felt the only definitive treatment was surgery and recommended bilateral knee replacements.
On 20 January 2020 Dr Soo provided the costing estimate for the bilateral knee replacement surgeries[52] and issued a further report to Ms Grech’s solicitors[53]. In addition to summarising his earlier reports, Dr Soo advises that he reviewed Ms Grech again on 19 December 2019. Dr Soo states that Ms Grech has debilitating bilateral knee pain as a result of her exacerbation of advanced osteoarthritis to her knees. Dr Soo says her incapacity is the result of prolonged recovery from her multiple right hip operations which have affected her gait and exacerbated underlying knee osteoarthritis. He says the right hip operation was deemed to be related to her job as a courier and that prior to this work she denies any hip symptoms or to her knees. In point 7 of the report Dr Soo gives more of an explanation adding:
“She is [sic] continued to walk with a marked antalgic gait since her operation and this has put increased pressure on both her right and left knees (overcompensation) resulting in exacerbation of her underlying osteoarthritis.[54]”
[52] ARD p 51.
[53] ARD p 84.
[54] ARD p 85.
Dr Singh
Dr Bhisham Singh, orthopaedic and spine surgeon, reported to Dr Lim on 18 July 2019[55]. He relates the history regarding the right hip pain and surgery. Dr Singh notes that Ms Grech also had back pain and pins and needles in her right leg at the same time when she experienced the hip pain at work. He notes her back pain has been persistent and an MRI scan reveals a Grade 2 L5/S1 spondylolisthesis which he says is likely to be longstanding. He says there was not increased tracer uptake on a nuclear medicine bone scan. He added at L4/5 there is disc herniation with foraminal, central and lateral recess stenosis. He advises that the pain is likely related to this disc bulge and she would benefit from trialling an epidural steroid injection at this level.
[55] ARD p 87.
Dr Giblin
Dr Peter Giblin, orthopaedic surgeon, has supplied to Ms Grech’s solicitors medico-legal reports dated 21 August 2018[56], 27 August 2018[57] and 3 March 2020[58]. In his first report
Dr Giblin took a history that she was getting in and out of the car and was constantly twisting with both her legs and she noticed the spontaneous onset of right sided groin pain in September 2016 in the course of her work. He says the symptoms did not resolve and were made worse when doing the courier job. He states, “there is no previous history of these symptoms or injuries.”[56] ARD p 55.
[57] ARD p 61.
[58] ARD p 64.
Dr Giblin noted on examination that Ms Grech walked with a marked limp and her Trendelenburg test on her right hip was positive. Her right leg was at least a half a centimetre shorter than her left. The range of motion in her right hip was restricted but the left hip had a full range of active pain free motion. It was recorded she used a walking stick. Dr Giblin found both knees had normal assisted range of motion. Dr Giblin set out details of the radiological investigations.
Dr Giblin provisionally diagnosed a soft tissue injury to her right hip which he said was reasonably causally related to the nature and conditions of her work environment as being the main contributing factor. He supported a right hip replacement. In the report dated 27 August 2018 Dr Giblin confirms that in his consultation there was no report of lumbar symptoms.
In his report dated 3 March 2020 Dr Giblin recorded that Ms Grech had undergone right hip replacement surgery on 5 December 2018 and had a peri-prosthetic fracture. He also details the history that Ms Grech had a fall at home in 2013 in which she sustained a torn medical meniscus of her left knee. He states in 2014 her right knee started hurting in the course of her general duties and she attributed this to her altered gait pattern, favouring the left leg.
Dr Giblin states as time continued both of her knees were symptomatic with the right being always worse than her left. Dr Giblin also notes that on 4 November 2019 Ms Grech had MRI scans and steroid injections into her lumbar spine and she has been recommended to have surgery to both knees and her low back.
Dr Giblin advises that since March 2018 Ms Grech has used a walking stick in her left hand.
Dr Giblin diagnosed that Ms Grech has spondylitic changes, with disc prolapse and nerve root irritation affecting her lumbar spine and he refers to the MRI scan report of 12 June 2019. Dr Giblin states that this scan showed a Grade 1 slip at L5/S1 with pars defects and a large disc herniation to the left at L4/5 contacting the left L5 nerve roots. He says that he saw these films and the nerve root was not grossly swollen or compressed. He also diagnosed the presence of arthritis in both knees, with bone on bone in the right knee on x-ray.
Dr Giblin states because of the pain and stiffness in her right hip occurring in the course of her duties in September 2016, Ms Grech had a chronically altered gait pattern producing a limp, stiffness and restriction of movements of the large joints of her lower extremities and low back. Dr Giblin adds that this altered biomechanics produced the symptoms complex formation in her lumbar spine and both her knees. He described these as soft tissue injures “predicated upon a material aggravation of pre-existing degenerative changes in both knees and her lumbar spine”. Later in the report the doctor says the bilateral knee replacements and spinal fusion are related to Ms Grech’s employment. He concludes by adding that all of the proposed surgeries are reasonably necessary on the basis that the surgeons are of current good standing and their aim is to diminish the underlying symptoms and disabilities and thereby provide and environment which is conducive to less pain and an opportunity for a return to work.
Dr Casikar
Dr Casikar, neurosurgeon, was qualified by the insurer and has supplied them with a report dated 30 July 2019[59]. After setting out the history, Dr Casikar records his examination findings including that Ms Grech was limping on her right side. Dr Casikar diagnosed that
Ms Grech had degenerative disease of her lumbar spine and an L4/5 disc prolapse. He noted there was no specific workplace injury but a gradual onset. The doctor expresses the view that he was not sure that getting in and out of a van would produce degenerative disease of the spine. He adds:“Ms Grech indicated that she had developed the left leg symptoms in April 2016. This was before the said date of injury. The MRI examination of 2015 and 2017 do not show any evidence of a disc prolapse. The more recent MRI examination dated 12/6/2019 shows a disc prolapse on the left side at L4/5 segment. It is probably the disc protrusion has occurred sometime between 2017 and 2019 even though she had left sciatic symptoms about six months before the said date of the injury.”
[59] Reply p 11.
Dr Casikar discusses the proposal of Dr Rao to undertake a spinal fusion from L4 to S1 and Dr Casikar suggests a more appropriate surgical procedure could be to do a microdiscectomy provided there was no degree of movement, and he said the flexion/extension study does not show any significant movement. However, Dr Casikar does acknowledge that it is also acceptable that the spinal fusion would be useful and is common practice where there is an associated spondylolisthesis.
However, Dr Casikar disagrees with Dr Rao’s view that the disc prolapse at L4/5 is due to overcompensation following the right hip surgery. He says the mere presence of a disc prolapse does not mean there has been an injury, as the disc can prolapse spontaneously.
Dr Rowe
Dr Roger Rowe, orthopaedic surgeon, in a medico-legal report for the insurer dated 18 November 2020 expressed the opinion that Ms Grech has osteoarthritis of the right hip due to age and constitutionally determined factors. He adds that it is unlikely to have been materially aggravated by the nature and conditions of her work as a courier. However,
Dr Rowe does not expand on this statement as he says he understands after arbitration the work relationship was accepted and the right hip replacement operation was undertaken under workers compensation.[60][60] AALD p 5.
Dr Rowe diagnosed that Ms Grech has evidence of degenerative change in her lumbar spine with a Grade II spondylolisthesis with bilateral pars defects at the lumbosacral level. He also found degenerative change in her right knee mainly involving the medical and patella femoral compartments.
Dr Rowe notes the right hip replacement took place on 5 December 2018 and that it was complicated by a spiral fracture of the right femur necessitating further surgery the next day, where the prothesis was changed and a plate applied to the femur. He notes there was much physiotherapy, hydrotherapy and medication with some relief of the groin pain but still pain in the right knee and low back. Dr Rowe sets out Ms Grech’s current status as involving most of the trouble being in the lower back and both knees, which are painful and give way.
In his examination findings Dr Rowe noted that Ms Grech walked with a rather waddling gait, favouring her right leg, but she did not use a walking stick. The Trendelenburg test was positive on the right side, which Dr Rowe said indicated deficient abductor mechanism for the right hip. The doctor sets out his other examination findings about the restrictions in movement of the right hip. Dr Rowe says he failed to measure her leg lengths to assess if there was any shortening. In relation to her back, Dr Rowe found no neurological deficit, tenderness or spasm and full movements, although straight leg raising was limited to 60° on the right due to hip discomfort and to 80° on the left. In the knees the doctor only reported mild crepitus. But he states Ms Grech has degenerative change in the right knee involving the medial and patella femoral compartments.
Dr Rowe states that there was no evidence available to him that the low back pathology and right knee pathology was caused or aggravated by the nature of Ms Grech’s work as a courier and office worker. However, the doctor does not consider whether there has been aggravation to those body parts because of the right hip condition and altered gait.
Dr Rowe also does not consider the treatment claimed in these proceedings.
Applicant’s submissions
Ms Grech’s counsel submitted that she sustained injury to her right hip in the course of her employment as a courier driver with the respondent in having to repetitively get in and out of a vehicle. He argues as a matter of commonsense that Ms Grech would have to place her right foot out of the vehicle on the ground and then manoeuvre her body and place a load on her right leg. It was submitted that the right hip became symptomatic on this basis and this is demonstrated by the fact that the right hip has pathology unlike the left hip, which was not being subjected to the same stresses when getting out of the vehicle.
It is also submitted she would have placed additional load on the right knee, and it would have been injured together with the right hip, being aggravation of underlying condition. It is noted that in 2018 the respondent agreed to pay for the costs of the right hip replacement surgery. It is argued that after that surgery she had difficulties with mobilisation and developed altered gait, which in turn caused further pathology in the right knee and the left knee.
The evidence from Dr Soo was relied upon. Counsel drew attention to the fact that Dr Soo treated Ms Grech in April 2018 and he took a history at that time about Ms Grech’s work as a courier, which required her to get in and out of her vehicle repeatedly in a day. It was submitted that Dr Soo also noted that Ms Grech had symptoms to her right hip, right lower back and groin and that she had not have this pain prior to doing the courier work. Counsel argued that a distinction can be drawn between a treating surgeon with that of a medico-legal doctor because a treating surgeon would have seen Ms Grech on more than one occasion and would have greater knowledge of the pathology, and also the treating surgeon is responsible for the care of a patient. For these reasons, counsel submitted that the opinion of Dr Soo should be preferred over that of the respondent’s experts as it should be regarded as carrying greater weight about causation and treatment.
It was also submitted that Dr Soo found Ms Grech had altered gait due to unsteadiness and her limp, putting pressure on both of her knees. It was submitted if the Commission accepts that the altered gait is due to the hip condition, and that the hip condition is causally related to the work, then it follows that the altered gait has caused a worsening of knee pain. Counsel specifically referred to the portions of Dr Soo’s report where he made findings about the presence on an antalgic gait and debilitating bilateral knee pain. These findings have been summarised by me above.
Counsel also submitted that Dr Soo also expresses the opinion that Ms Grech’s prolonged recovery from the multiple right hip operations has affected her gait and exacerbated underlying osteoarthritis in her knees. This applied to both knees. Dr Soo says prior to the employment with respondent Ms Grech denied the presence of symptoms in her hip.
It was submitted that the legal test to be applied was that set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[61]. Dr Soo notes that her knee arthritis is likely to deteriorate due to her altered gait, supporting the thesis that the altered gait has caused exacerbation of her underlying degenerative changes. It was also argued that the mechanism of injury is not really in contention, in that getting in and out of a car repeatedly would place increased pressure on her right lower extremity, thereby causing injury. It was submitted that Dr Soo also supports the argument that the antalgic gait puts pressure on both knees, exacerbating the underlying osteoarthritis in both knees.
[61] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
Counsel submitted that the Commission should rely upon Dr Soo’s opinion regarding the proposed surgery to the knees being reasonably necessary as a result of injury to the right hip in the course of employment, because Dr Soo is an expert in knee surgery and the treatment of knee injuries.
In addition, it was submitted that the medico-legal opinion of Dr Giblin supports Ms Grech’s case and in particular the doctor notes that Ms Grech has had to use a walking stick in her left hand since 2018. It was argued that the use of a walking stick confirms Ms Grech’s complaints about altered gait. Dr Giblin’s physical examination was also relied on with counsel noting the doctor found that she walks with marked limp and her Trendelenburg’s test was positive.
Counsel also drew attention to Dr Giblin’s opinion about causation contained in his report dated 27 August 2018 and also report of 3 March 2020. Dr Giblin’s diagnoses about the lumbar spine and both knees were relied on. It was submitted the doctor’s findings about the pathology on the right side was consistent with Ms Grech getting in and out of the vehicle. It was also submitted that Dr Giblin explained that the altered biomechanics, by her altered gait pattern, produced the symptoms formation in her lumbar spine and both knees.
Ms Grech’s counsel also relied upon Dr Giblin’s opinion that her soft tissue injuries to her lumbar spine and knees were predicated upon a material aggravation of pre-existing degenerative changes in both knees and her lumbar spine. It was noted that Dr Giblin also supported that the causal connection of the proposed surgeries to the employment and confirms the opinion of Dr Soo about knee replacements being the appropriate mode of treatment. It was argued that Dr Giblin also supports Dr Rao’s opinion regarding the reasonably necessity for the proposed lumbar surgery.
It was submitted that Dr Rao also had the history that Ms Grech was using a walking stick and Ms Grech told the doctor that she had ongoing back pain with right leg pain which had started after the injury and worsened in 2017. Counsel also submitted that Dr Rao explained that since the hip surgery more load or stresses had been placed on the back.
Ms Grech’s counsel also relied on Dr Randhawa who noted she had a very antalgic gait and he expressed the view that there is no doubt that her hip problems are due to the courier work and pivoting when getting out of the vehicle. Counsel also relied upon Dr Randhawa’s comment that the left hip examination was unremarkable as supporting the thesis that the left hip was not subjected to the same stresses as the right because of the nature of the courier driving work.
In relation to the respondent’s expert reports, Ms Grech’s counsel submitted that Dr Casikar does not address the cause of her knee difficulties. Also, it was submitted that it is relevant that Dr Casikar did not examine Ms Grech’s knees, but the doctor did comment that she was limping on the right side. As a result, it was submitted that Dr Casikar’s opinion does assist the respondent in relation to her knees.
Counsel noted that Dr Casikar did refer to L4/5 disc prolapse and degenerative condition of the lumbar spine. Counsel was critical of Dr Casikar because he asked himself the wrong question as he did not consider whether getting in and out of the vehicle would contribute to any aggravation of underlying disease and also whether, because of the hip surgery and the abnormal gait, there was an effect on the lumbar spine.
It was noted that Dr Casikar rejected Dr Rao’s opinion that there would have been overcompensation following the right hip surgery but did not really consider this thesis. As far as the proposed surgery, Dr Casikar preference is a microdiscectomy at L4/5 however counsel says this is not the test in Diab v NRMA Ltd[62]. Counsel also said that Dr Rao would not engage in gratuitous surgery, as he is responsible to Ms Grech. It was submitted that the question is whether the pre-existing degenerative disease has been affected by her workplace injury.
[62] [2014] NSWWCCPD 72.
Counsel referred to Dr Powell’s report and to his examination findings, but that report was only admitted as to history, so I have not based my decision on examination findings.
In relation to Dr Rowe’s report, Ms Grech’s counsel noted that the doctor found she walked with a waddling gait and submitted that it was not significant that she did not use a walking stick and that the doctor did find a positive Trendelenburg test. Counsel was critical of Dr Rowe’s comment about the knee in relation to mild crepitus. Counsel submitted that the radiology supports severe osteoarthritis pathology in the knees. It was submitted that Dr Rowe has not taken into account that there is a marked difference in the pathology evident in the right hip when compared to the left, which is consistent with the mechanism of injury getting in and out of the vehicle repeatedly.
It was submitted that Dr Rowe has not considered all the relevant factors about the mechanism of injury and effect of the altered gait. Counsel also submitted that Dr Rowe does not provide any proper opinion about the treatment proposed by Dr Soo and Dr Rao.
Counsel also referred to the contents of the radiology reports to which I have made reference in my summary earlier in these reasons. Counsel’s earlier submission that the pathology on the left side was less than the right was repeated by reference to the various radiology reports. It was again submitted that this is consistent with the alleged mechanism of injury. It was submitted that the early radiology reports before 2016 show underlying degenerative conditions and that these have been aggravated by the employment as a courier and also by the altered gait from the right hip injury and sequelae.
Respondent’s submissions
The respondent’s counsel referred to the histories in a number of the doctors’ reports to demonstrate that they did not have a complete history regarding Ms Grech’s condition as none refer to the report and findings of Dr Savvas in 2014. The histories counsel referred to are as follows:
(a) Dr Rao: chronic back pain following a work-related injury in 2016 which required right hip replacement with revision surgery. At the time Ms Grech reported ongoing back pain which started after the injury but worsened in 2017. Dr Rao states that he believes the injuries and current state are mainly related to her employment.
(b) Dr Giblin: in report of 21 August 2018 he has history of symptoms starting with work as a courier and there is no previous history of these symptoms or injuries. He notes Ms Grech had a fall at home in 2016. He also noted in 27 August 2018 report that there was no history relating to lumbar spine symptomatology. In report 3 March 2020, Dr Giblin has the history of the right knee pain which she attributed to altered gait from favouring her left leg. The respondent submitted the left knee was injured in the fall at home. The general nature and conditions of employment are productive of repetitive micro trauma and the proposed surgery is related to her employment.
(c) Dr Randhawa: the doctor says the incapacity is due to her long-term pivoting and also Ms Grech does not have any arthritis in her body.
(d) Dr Powell: Has the past history of no prior right hip injuries but had chronic intermittent lower back pain “in the past” but does not recall undergoing specialist review. Counsel submitted that there is no clarification what “in the past” means.
(e) Dr Casikar: she developed a low back pain mainly on the right side extending to the right knee, hip and groin in September 2016.
(f) Dr Rowe: chronic lower back and submitted there is no starting date for this chronic lower back pain.
Counsel referred to Dr Savvas’s report and submitted that that her report shows that
Ms Grech did have prior arthritis and had left knee arthroscopy. It was noted that Dr Savvas refers to members of Ms Grech’s family having rheumatoid arthritis. Furthermore, the respondent submitted that Dr Savvas refers to a CT scan in 2005 of the lumbar spine and it was argued that it can be assumed that Ms Grech must have been suffering from lumbar symptoms and it was submitted that this fact, and the CT scan, have not been revealed to any doctor in these proceedings. Emphasis was placed on Dr Savvas’s finding that Ms Grech has osteoarthritis in the lumbar spine and knees. It was submitted that this is contrary to the treating surgeon’s report that she did not have problems with arthritis. Counsel submitted the findings in Dr Savvas’s report is consistent with the opinion of Dr Casikar. It was also submitted that it is crucial for the doctors to have this correct history and to have available to them the report of Dr Savvas and the 2005 CT scan to which she refers. It was argued that without this Ms Grech’s doctors opinion as to causation and aggravation cannot be relied upon.
Applicant’s submissions in reply
Ms Grech’s counsel submitted that the respondent’s reference to her pre-existing difficulties does not affect her case because notwithstanding these pre-existing conditions she was able to do her job. It was argued that it was only after the stresses of the courier job that she became incapacitated and required a hip replacement. It was also submitted that the fact that Dr Savvas’s report provides evidence of pre-existing osteoarthritis is not to the point as this case involves the question of whether Ms Grech’s work increased her condition and involved an exacerbation within section 4(b)(ii) of the 1987 Act, and whether questions of a consequential nature resulted in an increase in the pathology. It was argued that in those circumstances the evidence in Dr Savvas’s report does not alter the ultimate question, being the effect of her employment and consequential matters which further aggravated her condition.
Determination
Relevant legal principles
The legal test of causation is that discussed by the Court of Appeal in Kooragang wherein Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at [463]- [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Deputy President Roche’s decision in Kumar v Royal Comfort Bedding Pty Ltd[63] is authority for the proposition that Kooragang is the test to determine if a consequential condition arises from a work injury. As Kirby P stated in Kooragang, an injury can set in train a series of events.
[63] [2012] NSWWCCPD 8, Kumar.
In terms of whether the proposed surgery is reasonably necessary as a result of the work-related injury, the legal test to apply is that set out in Murphy v Allity Management Services Pty Ltd[64], whether there has been a material contribution to the need for the treatment by the injury. Murphy is authority for the proposition that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. Deputy President Roche stated in Murphy that a worker only has to establish that the treatment is reasonably necessary as a result of the injury; that is, did the work-injury materially contribute to the need for surgery.
[64] [2015] NSWWCCPD 49, Murphy.
The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by section 60 of the 1987 Act was considered in the case of Diab v NRMA Ltd[65], which in turn deals with Judge Burke’s decision in Rose v Health Commission (NSW)[66]. In Diab Roche DP stated at [86]:
“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.”
[65] [2014] NSWWCCPD 72.
[66] (1986) 2 NSWCCR 32.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose with approval and stated:
“[88] In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
[89] With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
[90] 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’”.
In Diab at [89] Roche DP stated, “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.”
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[67] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[67] [2008] NSWCA 246.
Right hip injury
It is necessary to firstly determine whether Ms Grech has established that she sustained injury to the right hip. The respondent has submitted that she cannot succeed because her doctors do not have a complete history relating to her prior conditions and, in particular, the contents of Dr Savvas’s report.
It does concern me that Ms Grech did not refer to her treatment by Dr Savvas in her statements and did not seem to disclose such treatment to the specialists. This is particularly so when Dr Savvas said she advised Ms Grech that she was looking at a total knee replacement and lumbar spinal fusion in the future. Ms Grech did tell Dr Johnstone of this treatment when she saw her on 11 April 2015 at the Castle Hill Medical Centre and that she had a longstanding problem. Dr Ison was also aware she had been treated by Dr Savvas.
However, there is no evidence in Dr Savvas’s report or in Dr Johnstone’s entry for 11 April 2015 that Ms Grech had a right hip problem. I have carefully sifted through all of the treating records and I cannot find a complaint of right hip pain before 13 October 2016. I have detailed in my summary of Dr Ison’s records x-rays and scans of the knees in 2013 and 2014, but there is no radiological report at that time relating to the hip. I have also noted
Dr Ison’s entry about the fall on 5 May 2016 when Ms Grech injured her shoulder. I have noted that there is reference to some low back pain at the time and sort tissue bruising and that the doctor records “otherwise NAD”, which I infer means there was no other abnormality detected.
Neither counsel referred me to any prior hip radiology or record of right hip complaints before 13 October 2016.
Dr Savvas’s report is quite detailed and while she refers to the lumbar spine and the knees, she does not refer to the right hip being symptomatic. The respondent’s counsel noted that Dr Savvas did refer to various members of Ms Grech’s family having rheumatoid arthritis, however there is no evidence that Ms Grech has rheumatoid arthritis, her conditions have been described as osteoarthritis. It is mentioned that Ms Grech’s mother also had osteoarthritis, but it is not in contention that Ms Grech has osteoarthritis, the issue is whether the work she was doing aggravated the underlying osteoarthritic condition such to cause an injury.
The section of the 1987 Act referred to by Ms Grech’s counsel is section 4(b)(ii) which relates to a disease injury being “the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Ms Grech in her statements says in September 2016 she first noticed when she was driving, and delivering the films, she had an ache in her right groin area and the right side of her lumbar spine, right hip and right knee. She then says she had not had this type of pain to her hip, groin and back before. While I feel disquiet about the lack of complete histories including about Dr Savvas’s treatment, I find that I cannot conclude that Ms Grech was lying when she related this onset, because the evidence before the Commission does not disclose that she had the right groin and hip pain before.
Therefore, in terms of determining whether she has discharged her onus of proof in relation to the allegation of a right hip injury I do not accept the respondent’s submissions that her case must fail due to this point.
Decisions in cases such as Federal Broom Co Pty Ltd v Semlitch[68], albeit dealing with the 1926 Act, are illustrative of the questions to be asked when determining an issue of a “disease” injury. The questions posed by Windeyer J in Semlitch were:
(a) Was the applicant suffering from a disease?
(b) If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c) If so, was the employment a contributing factor?
[68] [1964] HCA 34; (1964) 110 CLR 626, Semlitch.
These questions still have relevance to the application of the current section 4(b)(ii) of the 1987 Act, but with the words “the main” to be added into the third question.
The first question in Semlitch is answered in the affirmative, as the MRI scan on 13 October 2016 disclosed that Ms Grech had mild to moderate osteoarthritis in her right hip joint.
Various cases have considered what is required to prove an aggravation etc of a disease. For instance, Roche DP in Kelly v Western Institute NSW TAFE Commission[69] referred to Semlitch and stated at [66]:
“The Arbitrator erred in rejecting Dr Burgess’s evidence on the basis that he did not explain the “baseline” from which the deterioration was said to have occurred. It was not necessary for the doctor to explain any baseline. An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.”
[69] [2010] NSWWCCPD 71, Kelly.
I have just referred to Ms Grech’s lay evidence. Her histories to her treating doctors and medico-legal experts are consistent with her statement evidence that she did not have right hip pain previously. Dr Sullivan in 2018 noted she was really struggling with right hip pain and she could barely walk up and down stairs. Her gait was markedly antalgic on the right side, her hip was irritable and stiff and he recommended a hip replacement. I find this evidence illustrates that Ms Grech’s experience of the disease in her hip had been increased. Before the courier work in September 2016 she did not suffer from symptoms from her underlying disease of osteoarthritis in her right hip, and by October 2016 she was complaining of pain in her right hip. Dr Lim attributes this aggravation of disease to her work as a courier getting in and out of vehicles, as does Dr Randhawa. Dr Randhawa goes further in that he points to the pathology in the left hip is not as severe as that in the right, and so supporting his view that the pivoting on the right hip getting out of the car has caused severe damage to her right hip.
Following the principles outlined in cases such as Semlitch and Kelly, I accept the submissions made on behalf of Ms Grech that there has been an aggravation etc of her osteoarthritis disease in her right hip because her experience of the disease has been increased or intensified by an increase in, or intensifying of, her symptoms. I accept the thesis advanced by Dr Randhawa about the pivoting on the hip getting out of the vehicle when working as a courier caused the aggravation to her right hip and I find that evidence is compelling in terms of the requirement of the employment being the main contributing factor to the aggravation of the disease. I accept the submission based on Kooragang that the causal connection has been made out.
Dr Casikar expressed the view that he was not sure that getting in and out of the van would produce degenerative disease of the spine, but he does not address whether such actions could have been the main contributing factor to the aggravation of disease in the right hip. On this point I prefer the opinion of Dr Randhawa who has given careful analysis as to the cause of the hip symptoms.
Dr Rowe was of the opinion that the osteoarthritis of the right hip was due to age and constitutional determined factors. He adds that it is unlikely to have been materially aggravated by the nature of her work as a courier. As I have noted earlier in these reasons, he does not really explain this or expand upon this because he says he understands the work relationship was accepted and the right hip operation was undertaken under workers compensation. Again, because Dr Randhawa has provided his analysis, I prefer his reasoning to that of Dr Rowe. Dr Soo’s history is also consistent with that of Dr Randhawa, that Ms Grech did not have prior right hip pain before this work as a courier.
Therefore, I am satisfied that Ms Grech has discharged her onus of proof that pursuant to section 4(b)(ii) of the 1987 Act that she has sustained injury to her right hip with her employment with the respondent being the main contributing factor to the aggravation of the underlying disease.
Logically the next question to address is whether the right hip replacement surgery which took place on 5 December 2018 was reasonably necessary as a result of the workplace injury. The respondent paid for this surgery in the prior proceedings on a voluntary basis and it argued in the hearing before me that injury to the right hip was in dispute. The respondent’s submissions did not really address, in the event that injury was found, whether the right hip replacement surgery was reasonably necessary as a result of the work-related hip injury. I accept Ms Grech’s medical evidence, particularly that of Dr Randhawa, which I find does establish such a causal connection. I find that the right hip replacement surgery undertaken on 5 December 2018 was reasonably necessary treatment as a result of the right hip injury with a deemed date of injury of 13 December 2016.
Knees
Ms Grech’s case is following this hip injury and replacement surgery she had continuing biomechanical problems, including altered gait, that have given rise to the consequential conditions in her knees and low back. She seeks the cost of surgeries to these body parts. She also asserts an aggravation injury to her right knee due to the courier job getting in and out of the vehicle.
I find there is ample evidence of such altered gait. Before she had the right hip replacement various doctors recorded that she walked with an antalgic gait such as:
(a) 29 March 2018 Dr Sullivan- markedly antalgic gait on the right side.
(b) 10 April 2018 Dr Ison - antalgic gait and was using a walking stick with her left hand.
(c) 19 April 2018- Dr Soo- walks with walking stick.
(d) 22 May 2018 Dr Randhawa- very antalgic gait.
(e) 21 August 2018 Dr Giblin- walked with marked limp, using walking stick.
(f) 18 October 2018 Dr Li- walked with a limp and using a walking aid.
Following the right hip replacement on 5 December 2018 the gait problems continued as noted as follows:
(a) 30 July 2019 Dr Casikar- limping on her right side.
(b) 7 November 2019 Dr Soo- right knee pain constant with swelling and locking and knee gives way and left knee worsening as result of altered gait and overreliance on leg.
(c) 19 December 2019 Dr Soo- debilitating bilateral knee pain as result of exacerbation osteoarthritis as result of prolonged recovery from the right hip operations which have affected her gait.
(d) 3 March 2020 Dr Giblin- chronically altered gait pattern from right hip injury.
(e) 18 November 2020 Dr Rowe- waddling gait, did not use a stick. Trendelenburg test positive on right side indicating deficient abductor mechanism for the right hip. Her hip replacement was complicated by spiral fracture of the right femur and thereafter much physiotherapy, hydrotherapy and medication but still some pain in the right knee. Both knees painful and giving way.
I find that it is clear from these examination findings and histories that Ms Grech had an altered gait after the right hip injury which persisted after the right hip replacement surgery. While is it the fact that she had knee issues before the right hip injury, I am not persuaded that this means she did not also have an aggravation of the underlying conditions in her knees because of the effects of the altered gait from the hip injury. Dr Savvas in her 2014 report mentions that Ms Grech hurt her knee in a fall with an MRI showing a tear and an arthroscopy being performed. She adds that Ms Grech had also been diagnosed with arthritis in the right knee and she advised her not to have an arthroscopy as it could make her knee worse. She said Ms Grech was looking at total knee replacement surgery. It is not clear if she was referring to one or both knees with this comment. Regardless of that uncertainty, what is clear is that before the right hip injury Ms Grech did have knee problems.
Dr Johnstone in April 2015 noted she had steroid injections in both knees, and this is borne out by the radiology reports for 20 and 24 March 2015[70].
[70] ARD pp 211 and 212.
The MRI scan of 13 October 2016 had a clinical note that Ms Grech had an aching right knee that was worse in the last month. Moderate osteoarthritis was found and the presence of tears, but the scan of the right knee on 16 April 2014 also referred to moderate osteoarthritis and tears. However, there is no evidence that Ms Grech was using a walking stick before the work as a courier in 2016. Ms Grech does say in her second statement that she did talk to Gill Arnamnart about arthritis relating to her knees before October 2016. However, the respondent has not put on any evidence from Gill Arnamnart. There is no evidence before the Commission to suggest that, even though Ms Grech had knee symptoms before the courier work, she was unable to do her work for the respondent due to her knee osteoarthritis.
On 15 March 2017 Dr Kostalas found no abnormality on examination of the right knee but he was aware she had osteoarthritis in the knee on MRI scanning.
Most of the medical evidence following October 2016 focuses on the right hip issues. However, Dr Soo in November 2019 records that Ms Grech’s right knee pain is constant with swelling and locking and the knee gives way. MRI scans of both knees showed tricompartmental osteoarthritis and Dr Soo stated in his report that the left knee was worsening as a result of altered gait and over reliance on the left leg. Dr Soo also reported that the knee symptoms stopped Ms Grech from doing her normal day to day activities and interfered with her sleep. I find this evidence from Dr Soo demonstrates that Ms Grech’s pre-existing bilateral knee osteoarthritis conditions were made worse by her altered gait from the right hip injury. In Kooragang Kirby P (as he was then) stated an event can set in train a series of events. This was also discussed in Kumar. I find this is what has happened in
Ms Grech’s case.
This finding, that Ms Grech sustained consequential conditions in her knees, is further supported by Dr Soo’s opinion in his report dated 20 Janaury 2020 wherein he states that she continued to walk with a marked antalgic gait since her operation and this has put increased pressure on both her right and left knees (overcompensation) resulting in exacerbation of her underlying osteoarthritis.
It is the case that Dr Soo does not refer to the radiological tests of Ms Grech’s knees before October 2016 or to Dr Savvas’s report, however, he was aware that she had underlying osteoarthritic conditions in both knees. Therefore, I am not persuaded by the respondent’s submissions that a failure to refer to Dr Savvas’s report is fatal to Ms Grech’s case.
Having found that Ms Grech has established that she has suffered from consequential conditions in her knees, being aggravation of the underlying osteoarthritis, as a result of the injury on 13 October 2016, I now have to determine whether the proposed bilateral knee replacement surgeries is reasonably necessary treatment.
Previously in these reasons I have referred to the principles referred to in Murphy, that a condition can have multiple causes and the work injury does not have to be the only, or even a substantial cause, before the treatment is recoverable under section 60 of the 1987 Act. The question Ms Grech has to satisfy is, does the work-injury materially contribute to the need for proposed bilateral knee replacement surgery?
Dr Savvas had stated in 2014 that Ms Grech would need knee replacement surgery, although it is not entirely clear to which knee she was making reference. While it would have been ideal in this case for the specialists to refer to her report and the pre-2016 radiology, I am not persuaded by the respondent’s submissions that it is fatal to this aspect of the matter. This is not a case where the treating surgeon is putting forward an argument that the work caused the osteoarthritis. Dr Soo has stated the work-related hip injury and consequent altered gait exacerbated the underlying knee osteoarthritis. Applying Murphy, I find that such an exacerbation materially contributed to the need for the proposed bilateral knee replacement surgery.
Applying the factors discussed in Diab, I accept the opinion of Dr Soo that he has considered the treatment options and conservative measures but, as he states, further non- surgical measures are not going to significantly help her symptoms. He has provided costing which is in the range for such treatment. I have focused on Dr Soo’s opinion, because as submitted by Ms Grech’s counsel, he is in the best position to provide an opinion regarding treatment, having consulted with Ms Grech since April 2018. I prefer his opinion to that of Dr Rowe who has not seen her as frequently and over a period of time. Dr Rowe has not given opinion about the proposed knee surgeries as a treatment regime.
Therefore, I find that the proposed bilateral knee replacement surgeries are reasonably necessary treatment as a result of the consequential conditions that have developed in the knees, which in turn are a result of the work-related right hip injury and its sequelae.
Lumbar spine
I have made a finding above that Ms Grech suffered from an altered gait after her right hip injury. Her case is that this altered gait has resulted in a consequential condition in her lumbar spine, being aggravation of the pre-existing degenerative changes. The respondent argued that the claim must fail because Ms Grech’s specialists have not referred to
Dr Savvas’s report and the radiological reports such as the MRI scan performed on 3 February 2015. It is common ground that Ms Grech has a pre-existing spondylolisthesis at L5 and a disc bulge at L4/5, however as I commented when summarising the radiologist’s report relating to that scan he stated in the body of the report that there is no focal left posterolateral disc herniation in the left exit foramina. Also, the MRI scan undertaken on 28 February 2017 found no significant change since the 2015 scan.
However, Dr Rao found in 2019 that Ms Grech has new pathology after the 2016 injury causing compression of the L5 nerve root in the lateral recess with worsening of the compression in the foramina. He recommended an L4/S1 posterior lumbar interbody fusion, decompression of the nerve roots and fixation. I find it is significant that Dr Rao took a history of back pain with leg pain after the October 2016 injury but that it worsened in 2017. This was in the context that Ms Grech’s walking had significantly worsened since the injury, she had altered gait and needed to use a walking stick. In May 2019 Dr Rao also noted
Ms Grech’s pain was bilateral and in the L5 distribution causing ache and numbness. Dr Rao also noted that her symptoms had progressed in the last three years, that is since the 2016 injury. He found that the neurological deficit was not present before the injury. Dr Rao considers that the hip replacement has also placed more stresses on her back.
It is interesting that when Dr Giblin first saw Ms Grech in August 2018, before the hip replacement surgery, he had no report of lumbar symptoms but in the report of 3 March 2020 he refers to an MRI scan of 12 June 2019 showing a large disc herniation to the left at L4/5 contacting the L5 nerve roots. Dr Giblin attributed the altered gait to the hip injury and that there had been a material aggravation to her lumbar spine from the altered biomechanics. In this regard his opinion is consistent with that of Dr Rao.
Dr Casikar says the MRI scans of 2015 and 2017 do not show any evidence of disc prolapse but the MRI scan of 12 June 2019 shows a disc prolapse on the left side at the L4/5 segment and he postulated the disc protrusion was caused sometime between 2017 and 2019 even though she had leg sciatic symptoms about six months before the injury of October 2016.
Dr Casikar says a disc can prolapse spontaneously and he disagrees with Dr Rao that it is due to overcompensation following the right hip surgery. However, I find Dr Casikar’s explanation unconvincing and find that the more likely scenario, on the balance of probabilities, is that this prolapse occurred as Dr Rao has postulated because of the altered gait of Ms Grech. This fits with the radiological change and the clinical findings of Dr Giblin and Dr Rao.
Dr Rowe did not consider whether there was aggravation to Ms Grech’s lumbar spine because of the right hip condition and altered gait he just says the low back pathology was not aggravated by her work as a courier.
I find that Dr Rao’s opinion, supported by that of Dr Giblin, should be preferred to the opinions of Dr Casikar and Dr Rowe. I am persuaded that because of the sequelae of the work- related right hip injury with the deemed date of injury of 13 October 2016 Ms Grech did sustain a consequential condition in her lumbar spine in the form of the aggravation of her underlying degenerative changes and that the disc that was shown to have a bulge in 2015 by 2019 had prolapsed. I find this is more likely than not to have occurred because of her altered gait. It needs to be borne in mind her gait alteration was significant. Many doctors have commented on it and there was leg shortening.
The final question to consider is whether Ms Grech has established that the proposed lumbar spine surgery is reasonably necessary treatment as a result from the injury to the right hip injury. We know that Dr Savvas did advise in 2014 that Ms Grech would need lumbar spine fusion in the future. However, her report did not identify the details of that or when in the future she meant. It is clear that Ms Grech was nonetheless able to work with the respondent thereafter. It is also significant, in my view, that in relation to the fall which occurred before the hip injury, Dr Ison recorded on 5 May 2016 that Ms Grech’s low back was examined, and she had some soft tissue bruising but was otherwise NAD. It is a reasonable inference to draw that, had Ms Grech been incapacitated by her lumbar spine condition, the doctor would have detected it on that examination.
In my view this evidence supports that the work-injury to the right hip and the altered gait did produce a material aggravation in Ms Grech’s back and, notwithstanding her pre-existing pathology, and in accordance with Murphy I find that the work injury has materially contributed to the need for a spinal fusion now, such as proposed by Dr Rao.
As to whether the type of surgery is reasonably necessary, Dr Rowe did not provide an opinion regarding the same. Dr Casikar suggests a more appropriate type of surgery would be a microdiscectomy, but he does acknowledge that it is also acceptable that spinal fusion would be useful and is common practice where there is spondylolisthesis. Ms Grech has spondylolisthesis, this is an underlying condition, but it is appropriate for Dr Rao to take that into account when choosing the type of surgery to treat Ms Grech as a result of the aggravation from the work injury. I accept the submissions of Ms Grech’s counsel that the opinion of the treating surgeon in this case should be given weight because he has examined Ms Grech several times and thus better acquainted with her condition. His opinion is also supported by Dr Giblin, and Dr Casikar does not rule out this type of surgery. The factors in Diab such as cost and effectiveness have not been raised as issues. I am satisfied that
Ms Grech has established that the surgery proposed by Dr Rao is reasonably necessary treatment as a result of the work injury with a deemed date of injury of 13 October 2016.
SUMMARY
Pursuant to section 4(b)(ii) of the 1987 Act Ms Grech has sustained injury to her right hip with her employment with the respondent being the main contributing factor to the aggravation of the underlying disease.
That the right hip replacement surgery undertaken on 5 December 2018 was reasonably necessary treatment as a result of the right hip injury with a deemed date of injury of 13 December 2016.
That the right hip injury caused Ms Grech to suffer from altered gait.
That as a result of the right hip injury and the altered gait, Ms Grech has sustained consequential conditions in her knees in the form of aggravation and exacerbation of the underlying osteoarthritis.
That the proposed bilateral knee replacement surgeries, and associated costs, are reasonably necessary treatment as a result of the work- related injury with a deemed date of injury of 13 October 2016.
That as a result of the right hip injury and the altered gait, Ms Grech has sustained a consequential condition in her lumbar spine in the form of aggravation and exacerbation of the underlying osteoarthritis.
That the proposed lumbar spinal fusion surgery, and associated costs, is reasonably necessary treatment as a result of the work-related injury with a deemed date of injury of 13 October 2016.
The respondent is to pay the costs of the proposed bilateral knee surgeries and associated costs at the applicable workers compensation gazetted rates.
The respondent is to pay the costs of the proposed lumbar spine fusion and associated costs at the applicable workers compensation gazetted rates.
Josephine Bamber
PRINCIPAL MEMBER
22 March 2021
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