Groth v Aurizon Operations Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Groth v Aurizon Operations Ltd [2021] NSWPIC 439
APPLICANT:	Malcolm Groth
RESPONDENT:	Aurizon Operations Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	29 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and medical expenses; fall at work; worker claimed injury to the lumbar right hip; pre-existing degenerative osteoarthritis in the right hip; whether worker suffered section 4(ii)(b) of the Workers Compensation Act 1987 disease injury; worker did not disclose history of pain in the right hip and previous x-rays to four treating and assessing doctors; worker’s oral evidence that he did or would have disclosed that history not accepted; Held - finding that worker’s evidence was not reliable; opinions of the doctors on whom the worker relied were based on inaccurate history; given unreliability of the worker’s evidence, his subjective evidence of worsening symptoms could not be relied on; award for the respondent.
DETERMINATIONS MADE:	1. The applicant has leave to amend the description of injury at page 7 of the Application to Resolve a Dispute to: “The worker sustained injury to his right hip, right knee, lumbar spine and cervical spine, progressing to right total hip replacement on 29 April 2021.” 2. The claim with respect to injury to the applicant’s right knee, lower back and cervical spine is discontinued. 3. Award for the respondent in respect of the claim for injury to the right hip.

STATEMENT OF REASONS

BACKGROUND

Mr Malcolm Groth (the applicant) was working as a “maintainer/provisioner” for Aurizon Operations Ltd (the respondent) on 26 July 2020 when he caught his right foot in a gap between some concrete and a rail. His leg went out from under him and he fell to the ground.
Mr Groth was taken by ambulance to Maitland Hospital where x-rays of his right hip, right knee and lumbar spine revealed no obvious fractures. An x-ray of his pelvis and right hip revealed severe osteoarthritis. He was discharged into the care of his general practitioner.
On 27 July 2020, Mr Groth attended on his employer’s doctor, Dr David Barnett, who has been his treating general practitioner since.
Dr Barnett arranged further scans of Mr Groth’s lumbar spine, right hip and right knee. A CT scan of his right hip and right knee showed mild medial compartment osteoarthritis in the region of the right knee and severe arthritic change in the region of the right hip. Dr Barnett referred Mr Groth to Dr David Gill, orthopaedic surgeon, who recommended an MRI scan and, ultimately, a right total hip replacement.
By a dispute notice issued on 15 September 2020, the respondent denied liability for the cost of the surgery proposed by Dr Gill on the ground that it was not reasonably necessary treatment as a result of the injury on 26 July 2020. The respondent arranged for Mr Groth to be examined by orthopaedic surgeon, Dr Daniel Posel, who saw Mr Groth on September 2020 and provided a report.
By a dispute notice issued on 9 October 2020, the respondent denied liability in respect of
Mr Groth’s claim for weekly payments and medical expenses as a result of injury to his right knee, right hip, lumbar spine and neck. The respondent asserted that Mr Groth had significant pre-existing conditions which he had failed to disclose, that he did not suffer any new discrete injury in the fall, or any aggravation, acceleration, exacerbation or deterioration of pre-existing disease to which his employment was the main contributing factor.

On 14 January 2021, Mr Groth attended on orthopaedic surgeon, Dr James Bodel, for assessment.
By further notice on 15 April 2021, the respondent maintained its decision.
On 29 April 2021, Mr Groth underwent a right total hip replacement under Dr Gill.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on 15 July 2021, Mr Groth claimed weekly payments from 9 October 2020 to date and continuing, and medical expenses of $1,679.79 for travel, scans and pharmacy expenses as a result of injury on 26 July 2020. He did not claim the cost of the total hip replacement performed by Dr Gill.

ISSUES FOR DETERMINATION

At the start of the conciliation/arbitration hearing on 10 September 2021, Mr Groth discontinued his claim in relation to the right knee, lower back and cervical spine.
The parties agree that the following issues remain in dispute:
(a) whether Mr Groth suffered injury to his right hip arising out of or in the course of his employment with the respondent on 26 July 2020 within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)
(b) whether he suffered incapacity as a result of any such injury, and
(c) whether he is entitled to reasonably necessary medical expenses as a result of any such injury.

PROCEDURE BEFORE THE COMMISSION

The hearing was conducted by MS Teams. Mr Groth was represented by Mr Stefan Mueller of counsel, instructed by Mr Sean Wright. The respondent was represented by Mr Simon McMahon of counsel, instructed by Ms Tayla Cunning.
At the start of the hearing, Mr Mueller sought leave to amend the description of injury at page 7 of the ARD. The description incorrectly referred to injuries progressing to right total knee replacement on 29 April 2021. There was no dispute that this should read right total hip replacement, and leave was granted.

Mr McMahon sought leave to have a supplementary report of Dr Posel dated 18 August 2021 admitted as a late document. The report was in response to Dr Bodel’s report. The possibility of a further report had been foreshadowed by the respondent’s solicitor at the teleconference on 13 August 2021. Mr McMahon submitted that the applicant was not taken by surprise and had not suggested that he wanted to meet any further report.
Mr Mueller objected to the admission of Dr Posel’s report on the ground that no adequate reason had been advanced by the respondent for its late production, that it was of questionable probative value given that Dr Posel essentially confirmed his earlier opinion, and that he made comments prejudicial to Mr Groth that went beyond his remit.
Having heard from the parties, I agreed with Mr Mueller’s submissions and declined to admit Dr Posel’s supplementary report.
Mr McMahon also sought leave to cross-examine Mr Groth. The possibility had been foreshadowed at the telephone conference and Mr Groth had been put on notice formally that leave would be sought by letter to his solicitors dated 27 August 2021. Mr McMahon submitted that Mr Groth’s credibility is squarely in question by reason of evidence indicating he had told doctors he had no prior problems with his right hip. Mr McMahon submitted that his claim is advanced in particular on assumptions relying on his subjective reporting, and it was appropriate for the respondent to be allowed to challenge his evidence.
Mr Mueller objected to cross-examination on the basis that it was hard to see how it could influence my decision given the amount of documentary evidence before the Commission. Further, that it was unclear why Mr Groth’s credibility was relevant. Mr Mueller submitted that prejudice to Mr Groth outweighed any probative value in allowing cross-examination.

I decided to allow cross-examination. The clinical records and medical reports before the Commission include evidence of severe osteoarthritis in Mr Groth’s right hip and pain for some years prior to 26 July 2020 including an x-ray in March 2019 and referral to the orthopaedic department of John Hunter Hospital in October 2019. Reports from Dr Bodel and other doctors on whom Mr Groth relies indicate that he denied any such history. Whether their reports were given in a “fair climate” was in issue, as was the credibility of Mr Groth’s evidence.

I decided it would assist me, and would be fair to both parties, to hear from Mr Groth so as to clarify what he said to different doctors about any symptoms in his right hip before and after the fall at work.

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, and
(b) Reply and attached documents.

Oral Evidence

Mr Groth was cross-examined by Mr McMahon and re-examined by Mr Mueller.

MR GROTH’S EVIDENCE

Mr Groth’s written evidence

Mr Groth provided a written statement of evidence dated July 2021[1]. He described his employment history with the respondent, initially through a labour hire company and, after approximately 12 months, directly with the respondent. He had to pass pre-employment fitness examinations with both. At the time of his injury, he was employed as a “maintainer/provisioner”.
[1] ARD page 1.

Mr Groth states he worked full-time from late 2015, initially doing heavy labouring work before transitioning into the maintenance role. Part of his role involved refuelling diesel engines on locomotives, necessitating climbing ladders to the top of the trains up to 12 times in a 12-hour shift.
Mr Groth states he has had previous injuries including problems with his lower back which gets stiff from time to time, and problems with his right knee and left shoulder. In early 2019, he saw his general practitioner, Dr Frank Ooi, and explained that his right hip pain had been giving him trouble and was affecting his “sleep and activities”. Dr Ooi referred him for an
x-ray of his right hip and groin which he had on 1 March 2019.
Mr Groth states that he “didn’t feel the need to do anything after that” but nevertheless attended on Dr Ooi later that year. On 14 October 2019, Dr Ooi referred him to the orthopaedic department of the John Hunter Hospital for review. The hospital placed him on “a routine ‘non-urgent’ outpatient appointment with the orthopaedics clinical team”. Dr Ooi advised him of this but he never followed up the hospital or “harassed” Dr Ooi for an appointment. He “just assumed it wasn’t necessary and [he] was still managing fine and work [sic]”.
Mr Groth describes the circumstances of the incident on 26 July 2020. He reported it and was taken immediately by ambulance to hospital. X-rays of his right hip, right knee and lumbar spine revealed no obvious fractures and he was discharged.
On or around 27 July 2020, Mr Groth attended on Dr Craig Barnett at the request of his employer. Dr Barnett prescribed analgesic medication and certified him unfit for work to
5 August 2020. He also recommended physiotherapy as soon as possible, noting that
Mr Groth might need a mobility aid.
On 31 August 2020, Dr Barnett referred Mr Groth to ethos health and AXIS injury management and certified him fit for 15 hours a week until 10 August 2020.
On 5 August 2020, Mr Groth had a right hip and groin ultrasound and injection, and CT scans of his lumbar spine, right knee and right hip. He was referred to Dr Gill who ordered an MRI of his right hip. He saw Dr Gill again on 25 August 2020 to discuss the results which showed “considerable diffusion and irritability” about his right hip joint.
Mr Groth states that Dr Barnett reported he had “a very twisted spine compensating moderately severe right hip dysfunction” and recommended he undergo an MRI of his lumbar spine. Dr Barnett suspected that some residual numbness and pain about “the knee” was also referred hip pain.
Following further attendances, Dr Gill recommended Mr Groth have a right total hip replacement. Dr Gill requested approval which the insurer refused.
Mr Groth says he attended on Dr Posel on 24 September 2020 following which the insurer issued a further dispute notice. Notwithstanding, Dr Gill placed him on the waiting list for surgery in the public system. In February 2021, Dr Gill advised that an outpatient appointment had been arranged for 10 May 2021. Mr Groth was in “such a dire state” that his partner contacted Dr Gill to see if anything further could be done. In April 2020, Dr Gill advised that he had received “some sort of funding” to allow him to operate through the public system at the Hunter Valley Private Hospital.

Mr Groth says he agrees with Dr Bodel’s report that, while he had right hip pain “for well before 26 July 2020”, the fall caused “whatever underlying condition there was” in his right hip to deteriorate quite significantly because, before the fall he was “managing fine” and “now I can barely walk and am in constant pain”.

Mr Groth’s oral evidence

The transcript of Mr Groth’s oral evidence is available. The following is a summary.
Under cross-examination, Mr Groth agreed that, when he received the dispute notice dated
9 October 2020, he was concerned to learn that his entitlements had been cut off. He said he could not recall when he contacted a lawyer but he agreed that, between reading the document and seeing a lawyer, he knew his entitlements had been cut off.
Mr Groth agreed that the dispute notice referred to “significant pre-existing conditions” but said he did not agree with that.
With respect to his statement of evidence. Mr Groth said he could not recall seeing it prior to signing but he must have. He agreed it was an important document. He recalled seeing
Dr Posel and then Dr Bodel.
Mr McMahon put to Mr Groth that, before 14 January 2021 when he saw Dr Bodel, he knew that his claim was disputed on the basis of a significant pre-existing condition in the right hip. In response, Mr Groth said he “expected that” because Dr Posel was the insurance doctor.

Mr Groth agreed with Mr McMahon that he knew in 2019 and in June 2020 that he had problems with his right hip and that he had complained to Dr Ooi. He said he did not recall telling Dr Ooi in October 2019 that the pain had been getting worse for years. He said he thought, when he saw Dr Ooi, that it was his back “pinching something”.
Mr McMahon asked Mr Groth whether he told Dr Ooi in March 2019 that he had pain in his right groin. Mr Groth said he did not recall. He said he recalled Dr Ooi sending him for an
x-ray of his right hip and referring him to John Hunter Hospital in October 2019. He said he did not recall telling Dr Ooi that he had pain and discomfort in his right hip but, if that was what Dr Ooi had recorded, then he must have.
Mr McMahon asked Mr Groth whether he would have told Dr Ooi, as recorded in the notes, that the hip pain was affecting his sleep and activities. Mr Groth said he was not sure.
Mr Groth agreed that Dr Ooi sent him for an x-ray of his pelvis in June 2020. He said if it was in the notes that he was having pain in his right hip and down the leg at that time, he “probably” told Dr Ooi that.
Asked about seeing Dr Bodel, Mr Groth said he recalled seeing him on 14 January 2021, though “not every word” that he said. He recalled that he saw Dr Bodel because he was challenging the declinature notice. He agreed with Mr McMahon that it was very important to give Dr Bodel an accurate history. He agreed that, at the time, he knew he had problems with his right hip and that he had had an x-ray.

Mr McMahon put to Mr Groth the history taken by Dr Bodel that he was “unaware of any problems with his hip” and “he had never previously had his hip x-rayed until this event”.
Mr Groth said that was not correct. He said his solicitors had sent “everything” to Dr Bodel. He would not have told Dr Bodel he had no prior history. He said Dr Bodel had all the documents so why would he deny it.
Mr Groth maintained that he told Dr Bodel he had previous trouble with his right hip. Asked whether he told Dr Bodel he had an x-ray one month before the accident, Mr Groth said he did not recall but he “probably did” because Dr Bodel “had the documents” and all his doctors’ notes; if he had said anything contrary to them, Dr Bodel would have said so. He agreed that his recollection of his conversation with Dr Bodel was “not the greatest”.
Mr Groth recalled seeing Dr Posel in September 2020. He said he could not recall whether Dr Posel asked him about any previous problems with the right hip. He said he did not accept that Dr Posel asked him several times if he had any previous problems with his right hip but he “probably” would have. He did not recall Dr Posel asking about x-rays of his right hip.
Mr McMahon put to Mr Groth that Dr Posel asked him, and he denied several times, that he had any previous problems with his right hip. Mr Groth said he would not have denied that history because there was medical evidence otherwise. He said he told Dr Posel about problems he had prior to the injury at work, that he had seen Dr Ooi and that he thought the problem was coming from his back. He said there was “no chance” that he would have told Dr Posel there was nothing wrong previously.
Mr McMahon put to Mr Groth that his written evidence that he was “managing fine” at work before the injury was not accurate. Mr Groth responded that he had not had a single day off and was not on any medication.
Mr Groth was emphatic that he told Dr Barnett about the previous problems with his right hip and that Dr Barnett had “known the whole time”. Mr McMahon put to him that, in his referral to Dr Gill, Dr Barnett said Mr Groth had been working prior to the fall “without any history of pain or disability”. In response, Mr Groth said Dr Barnett was “the same as Dr Posel” in that he had given him a signed authority for access to all his documents.

Mr McMahon put to Mr Groth that he did not tell Dr Barnett or Dr Gill about previous problems with his right hip. In response, Mr Groth said they “had the notes”. He said he could not recall telling them about previous scans. He said he told Dr Barnett “straight away” that he had pain previously but “nothing debilitating”. He said if Dr Barnett had asked whether he had “significant disability”, he would have said no but, if he had asked whether he had “some pain”, he would have said yes because he knew Dr Barnett had access to his records.
Mr Groth said he recalled seeing Dr Gill in August 2020. He did not recall telling Dr Gill about previous pain in the right hip but he “probably would have” as that was why he went to him. Asked whether he told Dr Gill that the pain in his right hip started in August 2020 as indicated in his report, Mr Groth said the “severe discomfort” started then.
Asked whether Dr Gill’s record that his hip was asymptomatic before the fall was correct,
Mr Groth said Dr Gill “would have known”. He said he “would have” told Dr Gill about the history of his right hip. Asked whether he would have told Dr Gill that he had difficulty standing and walking as recorded by Dr Ooi in March 2019, Mr Groth said that was “something that came and went”; he could have told Dr Gill but he did not recall.
Mr Groth agreed with Mr McMahon that his recollection of his interaction with the doctors over time about his right hip was “a bit patchy”. He did not agree that his reporting to
Dr Posel, Dr Bodel, Dr Barnett and Dr Gill was “less than accurate”. He said, having signed authority for access to all his documents, it would have been “pointless” for him to lie.
In re-examination, Mr Mueller asked Mr Groth if he recalled Dr Posel asking him about the
x-ray in June 2020. His response was not entirely clear. He said he recalled Dr Posel asking him, then said he could not recall. He did not recall if Dr Posel specifically said he had the
x-ray on hand.

Injury claim form

Mr Groth completed an injury claim form on 31 July 2020. He described the injury as soft tissue injury and the injured body parts as back, hip, knee and neck[2].
[2] ARD page 5.

Under “Previous injuries” in response to questions whether the “Part of body affected by this injury” was healthy prior to this incident, and whether he had previously had “any surgery and all treatment on this part of this body”, Mr Groth ticked “No”. He also ticked “No” to a question whether he had previously had “another injury or personal injury claim that relates to this injury”.

MEDICAL EVIDENCE

The ARD attaches reports of radiological scans of Mr Groth’s right knee dating from July 1992, and his lumbar spine and cervical spine dating from August 2003. More recently, they include an x-ray and ultrasound of the right hip on 1 March 2019, x-ray of the pelvis on 11 June 2020, and x-rays, CT scans and MRI dating from 26 July 2020. These are referred to further below.
Reports from orthopaedic surgeon, Dr Roland Hicks, in August 1992 to Dr Ooi refer to an injury to Mr Groth’s right knee at work in July 1992 and subsequent arthroscopy[3].
[3] ARD pages 216, 217.
A report of an x-ray of Mr Groth’s right knee on 10 January 2000 refers to “degeneration comparable to [his] 71 years[4]”. Mr Groth was aged 35 at the time. Mr McMahon submitted that the reference to 71 years reflects the degree of degeneration at that time. However, no conclusion can be drawn from this; it may be simply a typographical error.
[4] ARD page 126.
A discharge letter from John Hunter Hospital in August 2003 refers to a motor vehicle accident and appears to note injuries to Mr Groth’s neck and back[5].
[5] ARD page 127.

Dr Ooi’s records

Dr Ooi was Mr Groth’s general practitioner prior to 26 July 2020. From that date, Mr Groth attended on Dr Barnett. It does not appear that he returned to see Dr Ooi.
Handwritten clinical notes by Dr Ooi are in evidence. They are difficult to read and some are illegible but they appear to date from around 1992. It is not clear whether they comprise the entire record.
Notes on 18 June 2019 and 21 July 2019 appear to refer to pain and discomfort in the right hip. They are too indistinct to say that with any certainty. However, in a referral to the orthopaedic department at John Hunter Hospital on 14 October 2019, Dr Ooi wrote:

“Thank you for seeing Malcolm Groth aged 54 presents with pain and discomfort in the right hip [sic].
Duration - getting progressively worst for the past two years. Especially this past 3/12.
This is affecting his sleep and activities.
Standing, walking and bending.
Past history
Generally in good health
Treatment – nil
Investigations – x-ray right hip – See Results”

By letter dated 23 October 2019, the hospital advised that Mr Groth would be offered a routine outpatient appointment and would be contacted once one became available. There is no evidence in the records as to whether that happened.

John Hunter Hospital records, 26 July 2020

Records of Mr Groth’s attendance at John Hunter Hospital on 26 July 2020 show that he was brought in after falling at work[6]. He described immediate lower back and right hip pain radiating down to his right knee. He had tenderness over the front of the right knee and right hip. X-rays of the hip, knee and lumbar spine showed no obvious fracture. He was discharged to the care of his general practitioner.
[6] ARD page 57.
The hospital provided a WorkCover certificate certifying Mr Groth fit for pre-injury work from 31 July 2020 in respect of an injury described as “lower back pain”.[7]
[7] Reply page 31.

Dr Barnett’s records

Mr Groth first saw Dr Barnett at his employer’s request. Dr Barnett’s clinical notes are in evidence[8].
[8] ARD page 163ff.
On 27 July 2020, Dr Barnett noted the circumstances of the fall and Mr Groth’s attendance at hospital. With respect to the hip, he noted “not really able to examine”.[9] He issued a Certificate of capacity diagnosing “multiple location soft tissue injury” to the right knee, right hip, right back lumbar, and stiff neck and headache, and certifying Mr Groth unfit to 5 August 2020. With respect to any pre-existing factors which might be relevant, he noted “Nil known at this time”.[10]
[9] ARD page 183.
[10] ARD page 185.
On 31 July 2020, Dr Barnett’s notes record continuing problems in those body parts and that Mr Groth needed “to sleep in a recliner chair due to pain in the back and hips etc”.[11]
[11] ARD page 182.
On 7 August 2020, Dr Barnett certified Mr Groth fit for 15 hours a week to 30 August 2020[12] and referred him to Dr Gill. The letter to Dr Gill refers to the fall about 10 days earlier. It makes no reference to any history of hip problems[13].
[12] Reply page 38.
[13] ARD page 179.
Notes of subsequent appointments document ongoing complaints of hip pain. Email correspondence between Dr Barnett and Dr Gill is referred to below.
Dr Barnett continued to certify Mr Groth fit for 15 hours a week up to 30 September 2020 when he certified him unfit “with current severe pain”[14].
[14] Reply page 51.

Radiological investigations

The report of an x-ray on 1 March 2019 of Mr Groth’s right hip showed a clinical history of “pain and discomfort right groin” and “moderate to advanced degenerative changes present in the right hip[15]”.
[15] ARD page 131.
The report of an x-ray of Mr Groth’s pelvis on 11 June 2020 showed a clinical history of “pain and discomfort right hip with pain radiating down right leg”. The x-ray showed both hips demonstrated osteoarthritis and:
“The right hip is particularly severely affected where there is complete bone on bone contact and large circumferential osteophytic lipping.[16]”
[16] ARD page 132.
X-rays of Mr Groth’s lumbosacral spine, pelvis and right hip, and right knee at the hospital on 26 July 2020 showed no evidence of fracture. With respect to the right hip, the report shows:
“There is complete joint space loss at the right hip joint with subchondral cyst formation consistent with severe osteoarthritis. There is extensive remodelling of the proximal femur. There is no evidence of fracture.[17]”
[17] ARD page 133.

A report of a CT scan and ultrasound on 5 August 2020 of Mr Groth’s right hip, and ultrasound guided injection right trochanteric bursa, shows:
“There is severe osteoarthritis with complete joint space loss and large subchondral cyst formation with extensive osteophytosis. However, there is no evidence of a fracture”, and
“There is osteoarthritic change in the right hip joint with an effusion and synovitis. There is also fluid in the trochanteric bursa with tenderness to transducer pressure consistent with trochanteric bursitis. There is a tendinopathic appearance of the gluteus minimus.”[18]
[18] Reply page 26.
A report of the MRI of Mr Groth’s right hip on 12 August 2020 shows:
“Severe changes of degenerative arthropathy with extensive full thickness chondral loss, bony remodelling and osteophytic spurring. Extensive lateral degenerative change, joint effusion and patchy synovitis. No evidence of acute injury.”[19]
[19] Reply page 29.

Dr Gill’s reports, and email from Dr Barnett

Dr Gill first saw Mr Groth on 11 August 2020. He reported to Dr Barnett that Mr Groth presented with pain in the right hip, knee and back. He took a history from Mr Groth that “the problem commenced on 26 July 2020” when he caught his foot and twisted and fell[20].
[20] ARD page 207.
In relation to the hip, Dr Gill noted that symptoms were pains and “can not lie on this right side. [sic]”. He noted “prior to this accident - minimal problems” and “still able to run five km and play cricket”.
On examination, Dr Gill noted “a lot of pain of the RIGHT trochanteric bursa to palpate” and “severe pain on trying to move the hip at all in flexion”. He noted “new injury, some arthritis present? just a flare of OA? tear of the abductor?” He noted the reports of the CT scan and ultrasound on 5 August 2020.
As to diagnosis, Dr Gill reported that, clinically “this is trochanteric bursitis or and [sic] abductor tear and also hip arthritis. Likely both irritated by the work injury. It could be an undisplaced fracture though”. He recommended an MRI.
On 25 August 2020, Dr Gill reported to Dr Barnett that the MRI scan was clear that there was severe right hip arthritis present, and no fracture. He said it “would appear that the event at work has made the arthritis extremely painful and it remains so”. He recommended total hip replacement and said he had discussed the associated risks and long-term prospects with Mr Groth who said he was in severe pain and wanted the hip fixed as soon as possible[21].
[21] ARD page 211.
On 11 October 2020. Dr Barnett sent an email to Dr Gill advising that Mr Groth’s claim had been refused. He said, relevantly:
“Medically this seems a little odd, as Mr Groth was engaged in work activities prior to the fall without any history of pain or disability. It is said that the claim is denied by there being existing arthritis. It seems there is no distinction between Xray evident age changes and actual clincal [sic] function situation – that is normal function without pain or limitations. I have not seen the written reports behind the ruling.[22]”
[22] ARD pages 215, 216.

It is not clear whether Dr Barnett had seen a copy of the dispute notice dated 9 October 2020 when he wrote to Dr Gill. It seems he did not, because the notice refers to “significant pre-existing conditions” and lists the documents relied on by the insurer. They include Dr Ooi’s clinical notes, the x-ray on 1 March 2019, referral to John Hunter Hospital, and the x-ray in June 2020.
Dr Gill responded that it was fair to say that Mr Groth did have arthritis prior to the work accident. He said:
“From what I can determine, and you may have more information, there was no symptoms of arthritis prior to the accident. Which means that the work incident made a pre-existing asymptomatic hip arthritic problem into a symptomatic problem.”

Dr Gill and Dr Barnett exchanged comments about the legal process generally which are not relevant here.

Dr Posel’s report

Dr Posel saw Mr Groth for assessment on 24 September 2020[23]. He had documents including the x-ray and ultrasound on 1 March 2019[24], the x-ray on 11 June 2020, the CT scan and ultrasound on 5 August 2020, and the MRI scan on 12 August 2020. He also had reports from Dr Gill, referral letter from Dr Barnett, and Dr Ooi’s clinical notes and referral to John Hunter Hospital on 14 October 2019.
[23] ARD page 29.
[24] Dr Posel refers to an x-ray on 4 March 2019 but that appears to be a typographical error.

Dr Posel took a history of the incident on 26 July 2020 consistent with other reports. He noted that no fractures were identified on x-rays on that date. He noted the results of further investigations. He noted that Dr Gill, in his letter of 11 August 2020 under “surgical relevant history”, did not mention any previous problems with Mr Groth’s right hip, back or knee. He noted Dr McGill’s opinion, following the MRI, that it appeared the event at work had made the severe right hip arthritis extremely painful and it remained so.
In relation to medical history, Dr Posel reported that Mr Groth said he saw Dr Ooi two or three years earlier for a stiff back but did not receive any treatment. He said (emphases in original):
“Malcolm Groth reports no previous right hip problems. During the consultation,
I asked Malcolm Groth on a number of occasions if he had any previous right hip problems. He stated, on each occasion, he did not.
He also denied any previous x-rays of his right hip (I also questioned this on a number of occasions in the consultation today).
He also explained that he had never seen his general practitioner for a right hip problem in the past.”

Dr Posel said Mr Groth reported that, up until the subject injury, he enjoyed cycling three times one week, and jogging and walking three times on alternate weeks. At the time of his consultation, he said he was not sleeping well; he could not lie for long on the right side and was now sleeping in an armchair.
Dr Posel noted x-rays of the right hip on 4 March 2019 [sic] identified moderate to advanced degenerative changes. He noted the x-ray on 11 June 2020 with the clinical history of “pain and discomfort in his right hip with pain radiating down the right leg” and identifying arthritis in both hips. He noted the radiologist’s report that “the right hip is particularly severely affected where there is complete bone on bone contact and large circumferential osteophytic lipping”.
Dr Posel referred to the x-ray of the right hip and pelvis on 26 July 2020 which identified “a complete joint space loss of the right hip, subchondral cyst formation and extensive remodelling of the proximal femur”, and no fracture. He referred to the CT scan and ultrasound on 5 August 2020 and the MRI on 12 August 2020.
Dr Posel said he noted “number of inconsistencies” in the history supplied by Mr Groth. He noted Dr Ooi’s clinical notes on 21 February 2019 and referral for x-rays and ultrasound on 1 March 2019. He noted the referral on 14 October 2019 to John Hunter Hospital by which stage x-rays had already identified severe degenerative change, the only treatment option for which would have been total hip replacement.
Dr Posel said given that Mr Groth had had severe arthritis in the right hip for at least 18 months, he found it “incredible” that he was able to jog between two and three days every fortnight on three occasions. He said it would appear that Mr Groth’s right hip discomfort had deteriorated further when Dr Ooi requested an updated x-ray on 11 June 2020, six weeks before the subject injury. He noted that those x-rays revealed a complete loss of articular cartilage and complete bone on bone contact and large circumference osteophytic lipping in his right hip.

Dr Posel said he agreed with Dr Gill that the only option was a right total hip replacement but said the indication for surgery pre-existed the incident on 26 July 2020, definitely by 11 June 2020 and, probably much earlier, based on Dr Ooi’s referral letter on 14 October 2019.

Dr Posel said the only possibility by which Mr Groth could claim injury to the right hip on 26 July 2020, given the background of severe symptomatic osteoarthritis, would be a fracture in the right hip or an acute muscle or tendon tear, both of which had been excluded by the MRI.
In response to questions, Dr Posel said Mr Groth’s employment was not “the substantial contributing factor” to any of the claimed injuries. With respect to the right hip, he said
Mr Groth was complaining of increasing discomfort six weeks before the reported incident meaning his pain, discomfort and deformity “would have (and in fact did) occurred at the same time at the same stage of his life without the contribution from his employment”.
Dr Posel said Mr Groth’s employment was not the main contributing factor to the contraction, aggravation, acceleration, exacerbation or deterioration of the right hip disease. The only scenario in which the incident could have aggravated the underlying condition resulting in the deterioration of symptoms would have been if there was a fracture, and none was evident.

With respect to Mr Groth’s capacity for employment, Dr Posel said he remained unfit to return to work in his position with the respondent but this incapacity did not arise as a result of any injuries on 26 July 2020. He said Mr Groth’s right hip symptoms would not settle without a hip replacement but the prognosis to return to pre-injury duties after that was good.

Dr Bodel’s report

Dr James Bodel saw Mr Groth for assessment on 14 January 2021[25]. His report refers to “documentation” forwarded to him but does not specify what it comprised. He noted that
[25] ARD page 46.
Mr Groth was employed by the respondent full-time from late 2015, initially doing “heavy labouring oriented work” and then moving into the maintenance role.
Under “History relating to the injury”, Dr Bodel referred to the fall on 26 July 2020. He said
x-rays were taken and Mr Groth was uncertain whether any fractures were found. In the right hip and pelvis region, there was “severe osteoarthritis change with some remodelling and subchondral cyst formation”. He noted that Mr Groth was discharged to the care of
Dr Barnett.
Dr Bodel noted that a subsequent CT scan showed severe arthritic change in the right hip region and that, following an MRI, Dr Gill indicated that the source of Mr Groth’s hip pain was the arthritic change, and a total hip replacement was “the only option”. Dr Bodel noted that Mr Groth said his lower back pain and right hip pain “have steadily deteriorated over time”. He noted that Mr Groth passed a second pre-employment medical three months or so before the injury.
Under “Past medical history”, Dr Bodel said Mr Groth had “the previous problem” with his lower back which was stiff intermittently and had been treated with rest and analgesia. He said Mr Groth “was unaware of any problems with his hip and he indicates that he had never previously had his hip x-rayed until this event[26]”. He said Mr Groth reported no previous knee problems but indicated he had an operation in the right knee in the early 1990s which completely recovered.
[26] ARD page 148.

On examination, Dr Bodel found “quite severe pain” on attempting certain hip movements and grossly restricted range of movement in the right hip when compared to the left. He said unfortunately there was no mention of the appearances in the left hip in any films and no mention of it in the reports for comparison.
Under “Investigations”, Dr Bodel said no x-rays or other tests were available for review but he had seen the report of the x-rays of the right hip dated 1 March 2019. He noted that Dr Posel had been able to view the films “online” but said he had been unable to do so himself. He noted that Dr Posel recorded that an x-ray of the right hip dated 4 March 2019[27] identified “moderate to advance degenerative changes present in the right hip”, 15 months prior to the subject injury. Dr Bodel said:
“A repeat plain x-ray of the pelvis and the hip shows the ‘complete joint space loss of the right hip, subchondral cyst formation and extensive re-modelling of the proximal femur’ in the right hip at that time (italics in original).”
[27] This appears to be from a typographical error in Dr Posel’s report, meant to read 1 March 2019.

Although it is not clear from Dr Bodel’s report, the “repeat plain x-ray” appears to be that taken at the hospital on 26 July 2020.
Dr Bodel noted from Dr Posel’s report a “very poorly worded question” about causation of the current “pathology” in the right hip, rather than about “injury”. He said there was no question there was a long-standing pathological process in the right hip region that existed at least in March 2019. He said he agreed with Dr Posel that the only mechanism by which that severe pathology could have been induced was an acute fracture around the right hip region or acute muscle tendon tear, both of which had been excluded by the MRI following the injury. He then said:
“This pathology is not traumatic in nature “caused” by that specific event but that event at work has caused aggravation, acceleration, exacerbation and deterioration of the previously reasonably asymptomatic hip disease.[28]” (italics in original).
[28] ARD page 51.

As to diagnosis, Dr Bodel said:
“The diagnosis can only be a diagnosis of a soft tissue aggravation, acceleration, exacerbation, acceleration and deterioration of a previously symptomatic [sic] degenerative condition in the region of the right hip. He was not particularly symptomatic at the time of the injury based on the history that he gives, but clearly has been symptomatic in the past, because he had an x-ray taken 15 months earlier.[29]”
The other complicating factor was that he apparently had passed pre-employment occasions on two separate occasions, once … just prior to the injury. The events that occurred having my view, caused the aggravation, exacerbation, acceleration material version of the underlying disease process.”
[29] ARD page 52.

As to the nature of any pre-existing right hip condition, Dr Bodel said Mr Groth had “quite severe pre-existing hip arthritis as evidenced in the x-ray on 4 March 2019”. This indicated that the hip was symptomatic prior to the subject injury. He said:
“Clearly, he had been experiencing hip symptoms prior to the injury but they were manageable, allowing him to apply for work and gain that position.”[30]
[30] ARD page 52.

As to Mr Groth’s capacity for work, Dr Bodel said he clearly had a significant deterioration in clinical function in the region of the right hip as a result of the workplace event. His ongoing capacity was quite severely affected and would continue to be so until a successful hip replacement.
In response to a question whether Mr Groth’s employment was a substantial contributing factor to the alleged injury, Dr Bodel said:
“This is a very difficult question. The period of employment with this employer (Aurizon) was only a matter of months. The nature and conditions of work in general was not particularly arduous and that work in general was unlikely to have caused significant aggravation, acceleration, exacerbation and deterioration of the disease process that he had in existence in the region of the right hip prior to commencing that work after passing a pre-employment medical.
He went from being relatively asymptomatic to having quite severe pain in the lower part of the back, the right hip as a result of a specific event that occurred at work on 26 July 2020.
The reported abnormalities in the region of the right hip done on the day of the injury on 26 July 2020 indicates that there appears to have been a probable significant deterioration in the pathological appearance of the hip joint with a complete loss of the joint space and the subchondral cyst formation which is not mentioned in the earlier films on 1 March 2019.
Clearly, the specific event that occurred at work is a substantial contributing factor to the onset of his severe back pain, right hip and groin pain.
As to whether it is the substantial contributing factor to the injury, is a more difficult question. The injury is probably a soft tissue injury. There is no indication that there was a fracture, but he has been transformed from a relatively asymptomatic pathological hip and back to a very significantly symptomatic back by that event.”
With reference to the matters in section 9A(2) of the 1987 Act, Dr Bodel said:

“In putting [them] together, he has worked for Aurizon for a brief period of time. He passed a pre-employment medical to gain that position. He was relatively asymptomatic in the hip, although he had previous symptoms and was being investigated prior to this event but had he had gone from tolerable discomfort to intolerable pain as a result of the specific event described.
It is likely therefore that, that event has caused some probable structural damage in the abnormal hip joint but that has not been identified on any of the investigations.
The deterioration in the appearance between the two sets of films, 15 months apart, could not have occurred in that period, (the loss of the joint space in the cystic formation) and is much longer standing. It has occurred as part of the progression of the disease process over time. It must be said that it is a fairly rapid deterioration over a period of 15 months, based on the reported abnormalities and he only work [sic] for Aurizon for a very short period of time and therefore the nature of work at Aurizon is not a major contributing factor to that change.
It is my view therefore, that some, as yet undiagnosed, structural damage has occurred as a consequence of the event on 26 July 2020 and that has rapidly deteriorated the symptoms associated with the underlying disease process.”

As to whether the pathology and symptoms in the right hip were a result of any aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative disease condition, Dr Bodel said the underlying pathology was a long-standing constitutional pathology as shown by the films from March 2019. The radiological evidence showed that it had deteriorated over a period of 15 months and that the underlying pathology was aggravated, accelerated, exacerbated and deteriorated by the specific event on that day. He said:

“The exact nature of that aggravation, exacerbation, acceleration and deterioration is uncertain as there is no evidence of acute fracture or any other major structural injury that occurred in the films done after the fall.”

As to whether Mr Groth’s employment was the main contributing factor to the worsening of the disease process, Dr Bodel said:

“This is the most difficult part of this issue. Symptomatically, the event at work clearly is the main contributing factor to his current circumstance. It is probably not however the main contributing factor by was [sic] of aggravation, exacerbation, acceleration and deterioration of the disease process because of the timing that I have mentioned many times above.”[31]

[31] ARD page 54.

Dr Bodel concluded that the proposed total hip replacement was reasonably necessary for the management of the “work related component of the injury” which comprised about 50% of the need, the remaining 50% being due to the long-standing pre-existing pathology which was not work-related.
With respect to Mr Groth’s capacity for employment, Dr Bodel said it was quite severely affected and would continue to be so until he had a successful total hip replacement.

SUBMISSIONS

Parties’ submissions were recorded and the transcript is available. The following is a summary.

The respondent’s submissions

Mr McMahon submits that Mr Groth claims an aggravation of a pre-existing osteoarthritis to which his employment with the respondent was main contributing factor, being a disease injury within the meaning of section 4(b)(ii) of the 1987 Act.
Mr McMahon refers to the application of the disease provisions as set out in the Commission’s decision in Temple v Woolworths Group Limited[32]. That decision is currently the subject of an appeal but parties agree that the relevant law as identified from paragraph 235 on is correct.
[32] [2021] NSWPIC 287 (Temple).
Mr McMahon submits there is no doubt that Mr Groth has a long history of injuries and complaints to various body parts. He advances his claim on the basis that he “was managing fine” prior to the injury and can now “barely walk” it is in constant pain. Mr McMahon submits
I would have difficulty accepting that claim in light of the inconsistencies in Mr Groth’s reporting to the doctors.
Mr McMahon refers to Mr Groth’s evidence that, in the early part of 2019, he attended on
Dr Ooi and explained that right hip pain had been giving him trouble and affecting his “sleep and activities”, and Dr Ooi sent him for an x-ray, the report of which referred to a history of “pain and discomfort right groin” and moderate to advance degenerative changes in the right hip.
Although Dr Ooi’s notes are hard to read, they indicate that he saw Mr Groth again on 18 June 2019 and 21 July 2019, and the hip condition was sufficient for him to refer Mr Groth to the orthopaedic department of John Hunter Hospital on 14 October 2019 with pain and discomfort in the right hip getting progressively worse for the past few years, especially the past three months. Mr McMahon submits that description is consistent with the degenerative condition.
Mr McMahon submits that I could place some weight on Mr Groth’s evidence that he was still “managing fine” before the fall were it not for the report of the x-ray on 11 June 2020 which showed a clinical history of pain and discomfort in the right hip with pain radiating down the right leg. Mr McMahon submits that, although it is not clear what led to this x-ray, the added element of radiation indicates symptoms had advanced since 2019 when recorded by Dr Ooi. The finding of “bone on bone” contact indicates significant progression of the degenerative change. There is no mention of this attendance, five weeks before the fall, in Mr Groth’s statement.
Importantly, Mr McMahon submits, Dr Bodel relied on the March 2019 x-ray, he did not consider the June 2020 x-ray. Unlike Dr Posel, he did not see the scan itself.
Mr McMahon submits that I can accept that Mr Groth fell at work on 26 July 2020 but his answers on the Injury Claim form do not add up. He indicated injuries to the back, hip, knee and neck. It was not correct that he had no previous surgery or treatment to any.
Mr McMahon acknowledged that Mr Groth might not understand injury as we do but the form is nevertheless not entirely accurate.
In relation to Dr Barnett, Mr McMahon submits that his notes on 27 July 2020 refer to various body parts but in relation to the hip, he was “not really able to examine” it. The Certificate of capacity he issued on 27 July 2021 indicates “nil known at this time” in relation to any pre-existing factors which might be relevant. There is no reference in Dr Barnett’s notes to pre-existing condition even though Mr Groth says he thinks he told Dr Barnett about his right hip. Dr Gill recorded that the problem with the right hip commenced on 26 July 2020, prior to which Mr Groth had “minimal problems”.

Mr McMahon submits it is “abundantly clear” that Dr Barnett and Dr Gill proceeded on the basis that Mr Groth had no previous problems with his right hip, or only minimal problems, and that neither had access to the earlier notes or scans. Neither was aware of complaints of hip pain in March 2019 and both proceeded on the basis of Mr Groth’s account that he was previously asymptomatic.
In his email to Dr Gill on 11 October 2020, Dr Barnett said Mr Groth had engaged in work activities “without any history of pain or disability” and the insurer had not distinguished clinical signs from “normal function without pain or limitations”. Dr Gill replied to say that, from what he could determine, there were “no symptoms of arthritis prior to the accident” meaning a previously asymptomatic hip problem was made symptomatic by the accident.
Mr McMahon submits this email is fundamental because it indicates that both doctors took a positive history from Mr Groth of no previous problems, contrary to Mr Groth’s evidence that he did, or would have told each doctor of his history.

Mr McMahon submits that there might be room to give Mr Groth the benefit of the doubt but the multitude of inaccuracies, and his claim that he told doctors about his history, means that is not possible.
Mr McMahon submits that Dr Bodel refers to documentation but we have no idea what it comprised. Unlike Dr Posel, he had no x-rays or scans for review. He relied on a progression in Mr Groth’s symptoms and deterioration in his condition based on scans in March 2019 and July 2020 which he had not seen, and he made no mention of the June 2020 scan, the report of which was essentially the same as that following the accident. Dr Bodel did not appear to be aware of Dr Ooi’s records or the referral to John Hunter Hospital in October 2019.
Mr McMahon submits that Dr Bodel’s report is internally inconsistent. Despite Mr Groth saying he was unaware of any problems with his hip and had never previously had x-rays until this event, Dr Bodel described the hip as “reasonably asymptomatic”. He then says
Mr Groth clearly had symptoms but they were “manageable”, without any apparent basis for the statement. He refers to likely “structural damage” which was not identified on examination and which he said was “as yet undiagnosed”.
Mr McMahon submits that, if Dr Bodel had an accurate history, I might find Mr Groth has discharged his burden of proof. However, his report does not add up. The evidence of the treating doctors cannot be relied on to supplement Dr Bodel’s report because neither had an accurate history.
In contrast, Mr McMahon submits, Dr Posel reviewed the scans and had the records. He asked Mr Groth about his history and whether he had had x-rays, multiple times and
Mr Groth denied any history. He gave a considered opinion based on all the material. He and Dr Bodel agreed that a fracture or a tear would be needed to find and aggravation.
Mr McMahon acknowledged that doctors can record inaccurate histories but submits that it is implausible that Mr Groth told all four doctors about his history and all four recorded it incorrectly.
Mr McMahon submits that Mr Groth cannot be accepted as a witness of truth. Even if he was genuinely mistaken in the history he gave to the doctors, there is no question that his reporting was incorrect. Put at its best, he has a poor memory, at its worst he attempted to mislead. Mr McMahon submits that I cannot accept any evidence he gives unless it is against his interest or independently corroborated.
Mr McMahon submits that, considering Mr Groth’s evidence generally, his claim that he had no difficulty with his work immediately before the incident should not be accepted. His whole case and whether his employment was the main contributing factor to the aggravation relies on two propositions: firstly, that he had no problems doing his work before 26 July 2020 and, secondly, that he has been incapacitated since. The evidence does not support that conclusion.
Mr McMahon submits that the question of capacity flows from the finding in respect of injury. There is no evidence of incapacity following the total hip replacement in April 2021.

The applicant’s submissions

Mr Mueller submits that it is uncontroversial that Mr Groth had a fall at work on 26 July 2020. It has never been put to him that he has exaggerated his pain following the fall and it was never put to him that he was not incapacitated.
Mr Mueller submits that it was never put to Mr Groth that he had x-rays in June 2020, or why they were done.
With respect to the respondent’s submission that Dr Posel reviewed the x-rays, Mr Mueller submits that is not made out in his report. The respondent made a good deal of who actually saw the x-rays but it is not decisive as to the weight to be given to each doctor’s evidence.
Mr Mueller said he had no issue with the law in respect of the disease provisions as set out in the decision in Temple and the relevant questions to be asked in determining whether
Mr Groth had an aggravation injury.
Mr Mueller submitted that the guiding principle in this case is set out in Federal Broom Co Pty Ltd v Semlitch[33] and other authorities cited in Temple at [238]ff, that there is an exacerbation of a disease where the experience of the disease by the worker is increased or intensified by an increase or intensifying of symptoms, and the word is directed to the effect of the disease upon an individual rather than being concerned with the underlying mechanism.
[33] [1964] HCA 34; (1964) 110 CLR 626 (Federal Broom).
Relying on Federal Broom, Mr Mueller submits that there is a relevant aggravation if the symptoms have become worse.
Mr Mueller relies on AV v AW[34] in which Deputy President Snell set out the test of “main contributing factor” for the purpose of the disease provisions. Mr Mueller submits that, in this case, there is no alternative or conflicting causation suggested.
[34] [2020] NSWWCPD 9.

Mr Mueller submits that Dr Bodel acknowledges that the question whether Mr Groth’s implement was “the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease process” was the most difficult part of this issue. Mr Mueller submits that the test requires that employment be the main contributing factor to the aggravation and not to the disease process itself.
Mr Mueller submits that the evidence shows that the real effect on Mr Groth was that the effects of the disease were made worse by the workplace injury. The fact that Dr Posel did not see the June 2020 scan does not change his opinion that Mr Groth’s employment was clearly the main contributing factor to the worsening of his symptoms. That he did not see the June 2020 x-ray is not fatal to that opinion.
Mr Mueller submits that it was not put to Mr Groth that he exaggerated his symptoms after the fall. Dr Bodel is an experienced doctor and he was satisfied that something had clearly changed following the fall.
Mr Mueller submits that the suggestion that Mr Groth tried to mislead doctors and, therefore, the Commission, is a very serious allegation and requires convincing evidence: Briginshaw v Briginshaw[35]. Mr Groth’s evidence is that his symptoms were significantly worse after the fall; that is the test and Mr Groth meets it.

[35] HCA 34, 60 CLR 336.

Submissions in reply

In reply, Mr McMahon submits that the fact Dr Bodel did not have the June 2020 scan is significant. Dr Bodel said the reported abnormalities in the region of the right hip as seen in the scan on 26 July 2020 indicated there appear to have been a probable significant deterioration since the films on 1 March 2019. He referred in particular to the pathological appearance of the hip joint with a complete loss of the joint space and subchondral cyst formation which was not mentioned in the earlier films. However, the scans in June 2020 and July 2020, before and after the fall, were virtually identical.

CONSIDERATION

Section 4 of the 1987 Act defines “injury” as follows:
“In this Act--

‘injury’ --
(a)means personal injury arising out of or in the course of employment,
(b)includes a

‘disease injury’, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)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”

Mr Groth claims he suffered an aggravation, acceleration, exacerbation or deterioration of pre-existing osteoarthritis in his right hip arising out of or in the course of his employment with the respondent to which his employment was the main contributing factor. For convenience, I will refer to “aggravation, acceleration, exacerbation or deterioration” as “aggravation”.
Mr Groth bears the onus of proof. The standard is on the balance of probabilities, meaning
[36] [2008] NSWWCCPD 134.
[37] [2008] NSWCA 246.
I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[36] and Nguyen v Cosmopolitan Homes[37].
The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates[38] as follows:
“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.”
[38] 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

Parties agree that the law relating to the application of the disease provisions is as set out in authorities cited in the Commission’s decision in Temple.
In Federal Broom, Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
Windeyer J in Federal Broom said:
“The question that each [aggravation, acceleration, exacerbation, deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.

Windeyer J posed the following questions:
“Was the applicant suffering from a disease? If so, was there an aggravation, acceleration, exacerbation or deterioration of it? If so, was her (or his) employment a contributing factor? If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”
The questions posed in Federal Broom were applied by the Court of Appeal in Austin v Director General of Education[39]. In Cant v Catholic Schools Office[40] Burke CCJ, applying Federal Broom said at [17]:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
[39] (1994) 10 NSWCCR 373.
[40] [2000] NSWCC 37; (2000) NSWCCR 88

The proper test is whether the aggravation to which the employment was the main contributing factor had “some tangible effect” on the individual concerned. It is not necessary for the particular disease to have been made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltdv Raymond & Pegrin Pty Ltd[41]and Rural Press Limited v Hancock.[42]
[41] [2006] NSWWCCPD 132; (2006) 6 DDCR 79.
[42] [2009] NSWCCPD 160.

For injuries received on or after 19 June 2012, employment must be the main contributing factor to the aggravation.
In AV v AW[43] Deputy President Snell considered at [65] – [78] authorities on the meaning of main contributing factor from which he said the following could be taken:
“(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[43] [2020] NSWWCCPD 9.

Turning to the evidence in this case, there is no dispute that Mr Groth fell at work on 26 July 2020 and was taken to hospital. There is no dispute that he had pre-existing osteoarthritis in the right hip and was therefore suffering from a disease.
For his claim to succeed, Mr Groth must establish on the balance of probabilities that the fall aggravated his pre-existing condition in the sense of increasing or intensifying his symptoms, and that his employment was the main contributing factor to the aggravation.
Evidence of a worker’s subjective experience of his or her symptoms is an essential starting point. Mr Groth’s evidence is that he was “managing fine” prior to the fall at work and can now barely walk and is in constant pain. He relies on his own evidence and that of
Dr Barnett, Dr Gill and Dr Bodel.
Giving evidence, Mr Groth said he could not recall in detail his conversations with each of the doctors, and he acknowledged that his recollection was “not the best”. He cannot be criticised for poor memory. However, his oral evidence was that he either did, or would have, told each of the doctors, including Dr Posel, that he had a history of problems with his right hip.
Mr Groth acknowledged under cross-examination that he knew in 2019 and in June 2020, before he saw the doctors, that he had problems with his right hip. He acknowledged that he had complained to Dr Ooi about his hip. He said that, when he saw Dr Ooi, he thought it was his back “pinching something” but whatever he thought was the cause of the problem, he agreed under cross-examination that he knew he had problems with his right hip before the fall. He did not dispute telling Dr Ooi that he had pain and discomfort in his right hip in 2019.
Mr Groth gave evidence that he was “not sure” whether he would have told Dr Ooi, as recorded in Dr Ooi’s clinical notes, that the pain was affecting his sleep and activities. He agreed that Dr Ooi sent him for an x-ray in June 2020. He agreed that, if the record indicated he was having pain in his right hip and down the leg at that time, he “probably” told Dr Ooi that.
In the referral to John Hunter Hospital on 14 October 2019, Dr Ooi said the pain and discomfort in Mr Groth’s right hip had been getting progressively worse for the past two years and especially in the previous three months. It was affecting his sleep and “activities” which Dr Ooi’s note records as “standing, walking and bending”.
The problems he was having with his right hip were evidently sufficient for Mr Groth to see Dr Ooi over several months, for Dr Ooi to send him for an x-ray, and to refer him to the orthopaedic department of the hospital.
Mr Groth gave evidence that he did not bother to follow up the appointment with the hospital and he did not “harass” Dr Ooi about it. He was not asked about that in cross-examination and I cannot draw any conclusions as to why he did not follow up the appointment. However, what is clear is that, by June 2020, Mr Groth saw Dr Ooi again about his right hip. It is reasonable to infer, from the fact that Dr Ooi sent him for a further x-ray, that his condition had not improved and, probably, had worsened. That is borne out by the clinical history in the x-ray report that pain was now radiating down into Mr Groth’s right leg.
The history taken by the treating and assessing doctors following the fall at work is important because each based his opinion as to its effects of the fall on what Mr Groth told them of his history before, and after, the fall.
Under cross-examination, Mr Groth was emphatic that he told Dr Barnett about the previous problems with his right hip. He said Dr Barnett had “known the whole time”. He said he had given Dr Barnett a signed authority for access to all his documents and that he “had the notes”. He maintained he “would have” told Dr Gill about his history for the same reason.

Mr Groth disputed Dr Bodel’s report that he said he was “unaware of any problems with his hip” and that he had “never previously had his hip x-rayed until this event”. He maintained he told Dr Bodel about previous problems with his hip and “probably” told him about the x-ray in June 2020. He said he would not have told Dr Bodel he had no prior history because his solicitors had sent “everything” to Dr Bodel.

Mr Groth also maintained that he told Dr Posel about his history. He disputed Dr Posel’s report that he denied, when asked several times, whether he had any previous problems with his right hip. He said he “would not have” done so because there was medical evidence otherwise. He maintained that he told Dr Posel about previous problems with his right hip, that he had seen Dr Ooi about it and that he thought the problem was coming from his back. He insisted there was “no chance” that he would have told Dr Posel there was nothing wrong with his hip previously.
Some of Mr Groth’s responses to questions in cross-examination appeared less than forthright and, in some cases, evasive. He cannot be criticised for failing to recall conversations in detail. However, it is not a response to say that he “would have” told doctors, and less so that they “would have known” something because they had it in their notes. Whether or not they had that information is not the point. He may have given written authority for access to his records but the evidence indicates that neither Dr Barnett nor Dr Gill had access to records and notes of his history. Dr Bodel appears to have had access to some documents but it is not clear what they were.
It is well-established that clinical notes must be approached with caution: Mason v Demasi[44] and Davis v Council of the City of Wagga Wagga[45]. In Demasi, Basten J referred to the difficulties associated with discounting an appellant’s testimony on the basis of apparently inconsistent accounts given to or taken by various health professionals.
[44] [2009] NSWCA 227 (Demasi).
[45] [2004] NSWCA 34; 4 DDCR 358 (Davis).
In Davis, Mason P said experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.
However, even allowing for misunderstanding or misrecording by the doctors, or misunderstanding or failure of memory on Mr Groth’s part, I do not accept his evidence that he told each of the doctors about his previous problems with his right hip.
Dr Barnett recorded on 27 July 2020 with respect to any pre-existing factors “Nil known at this time”. It cannot be assumed from this note that Dr Barnett actually asked Mr Groth about his history and that Mr Groth denied any. However, it appears at odds with Mr Groth’s evidence that Dr Barnett had “known the whole time” about his history.
Mr Groth saw Dr Barnett again on 31 July 2020, and on 7 August 2020 when Dr Barnett referred him to Dr Gill. Nothing in Dr Barnett’s note on 31 July 2020 or the referral to Dr Gill indicates a history of pain in the right hip. It is reasonable to infer, if Dr Barnett was aware of that history, that he would have included in the referral to Dr Gill.
The email exchange between the doctors on 11 October 2020 makes clear that Dr Barnett was not aware of any previous problems with Mr Groth’s right hip. By that time, he had seen Mr Groth a number of times. Dr Barnett said in his email he found the denial of liability “a little odd” because Mr Groth had been engaged in work activities prior to the fall “without any history of pain or disability”. He said the insurer did not distinguish between “x-ray evident age changes” and “normal function without pain or limitations”.
Dr Barnett can only have obtained that history from Mr Groth. It is at odds with Dr Ooi’s referral in October 2019 stating that Mr Groth’s pain and discomfort in the right hip of been getting progressively worse and was affecting his sleep and activities including standing, walking and bending.
Dr Barnett confirmed in his email to Dr Gill that he had not seen the reports on which the insurer’s decision was based. It is reasonable to infer that he had not seen the notice itself. Has he done so, he would have seen that it referred to “significant pre-existing conditions” and listed the documents relied on by the insurer.
Dr Gill said in his first report that Mr Groth’s problems commenced on 26 July 2020. He saw Mr Groth for review on 25 August 2020. In his email to Dr Barnett on 11 October 2020, he said, from what he could determine, there were no symptoms of arthritis prior to the accident. Mr Groth’s evidence that he “probably would have” told Dr Gill about his history, and that
Dr Gill “would have known” is not borne out in Dr Gill’s reports or his email with Dr Barnett.

In my view, the only conclusion that can reasonably be drawn from the evidence is that
Mr Groth did not tell Dr Barnett or Dr Gill about any previous condition as he claims.
Nor do I accept that Mr Groth told Dr Bodel and Dr Posel about his history as he claims. Both reports are clear that they asked Mr Groth about his history, and Dr Posel several times.

Although Dr Bodel concluded that Mr Groth’s right hip was “symptomatic” or “relatively asymptomatic” prior to the fall, his conclusion does not appear to be based on anything
Mr Groth told him. Rather, he appears to have deduced it from the fact of the x-ray in March 2019, the referral to John Hunter Hospital in October 2019, and the finding of severe arthritis in the scans following the fall. He did not comment on the apparent inconsistency with the history he took from Mr Groth.
In his written statement of evidence dated 8 July 2021, Mr Groth acknowledges the history of problems with his right hip. He details his attendance on Dr Ooi in early 2019 and that he told Dr Ooi the pain had started affecting his sleep and activities. He refers to the x-ray on
1 March 2019 and referral in October 2019 to John Hunter Hospital. He does not refer to the x-ray in June 2020. It is difficult to escape the impression that his frankness in his written statement was likely prompted by these proceedings. In any event, it is quite different to what each of the doctors recorded.
I agree with Mr McMahon’s submission that there is room for the benefit of the doubt in relation to what one, or even several, doctors record in their reports. However, I do not accept that Dr Barnett, Dr Gill, Dr Bodel and Dr Posel all misunderstood, or misheard or misrecorded that Mr Groth told them about his history. I find that their reports reflect what
Mr Groth told them.
The evidence about the history of Mr Groth’s condition is central to his claim because the doctors on whom he relies drew their conclusions as to the aggravation based on what he told them. I do not think it necessary to find that Mr Groth positively lied to the doctors or set out to mislead. However, the end result is the same, that his evidence is unreliable and the information on which they based their opinions was not correct, and nor was it complete. They had no reliable measure by which to say that Mr Groth’s symptoms were caused by, or made worse, by the fall at work and, if so, that his employment was the main contributing factor to the aggravation.
The significance of what the doctors understood about Mr Groth’s history is clear from the documents. It is clear from Dr Barnett’s email to Dr Gill that he thought it odd that liability would be denied, given Mr Groth’s history. Dr Gill’s response makes very clear that, based on the history he had, the work incident made a pre-existing asymptomatic hip arthritic problem into a symptomatic problem.
Dr Bodel’s report is less clear, given what he reported as the history he took from Mr Groth. Dr Bodel said Mr Groth was “not particularly symptomatic at the time of the injury based on the history that he gives” but he was “clearly symptomatic” in the past.
Dr Bodel states that Mr Groth’s symptoms were “manageable” because he was able to work, but the basis of this statement is not clear. It does not appear it came from Mr Groth. Dr Bodel also describes Mr Groth as “relatively asymptomatic” without any clear basis, given that Mr Groth had told him he was not aware of any previous problems.
The main difficulty with Dr Bodel’s report is that he based his opinion that Mr Groth had a significant deterioration in clinical function as a result of the workplace incident on a comparison of the x-rays in March 2019 and July 2020. Although he referred to Dr Posel’s report which referred to the x-ray in June 2020, Dr Bodel did not appear to be aware of it.
Dr Bodel concluded that the incident at work was a substantial contributing factor to the onset of Mr Groth’s severe right hip pain from the reported abnormalities on the x-ray done on 26 July 2020. In particular, he referred to the “pathological appearance of the hip joint with a complete loss of the joint space and the subchondral cyst formation which is not mentioned in the earlier films on 1 March 2019”. Very similar findings were reported in June 2020 before the fall.
Dr Bodel concluded there had been a fairly rapid deterioration over a period of 15 months, based mainly on the reported abnormalities. He agreed with Dr Posel that no fracture or tear was seen on the MRI and then said “some, as yet undiagnosed, structural damage” had occurred as a consequence of the event on 26 July 2020 and Mr Groth’s symptoms had rapidly deteriorated. The basis for that statement is not made out.
In contrast, Dr Posel had a full clinical history and gave a careful and considered opinion.
I accept that the medical evidence documents restricted movement in Mr Groth’s right hip and his complaints of severe pain following the fall on 26 July 2020. I accept there is no evidence to contradict his claim that he was able to carry out his work before that date. However, for the reasons already outlined, I am not persuaded that his subjective reporting of symptoms can be relied on, or that the doctors on him he relies had a reliable basis on which to form their opinions.
Mr Mueller submitted that it was never put to Mr Groth that he had x-rays in June 2020 or why they were done. I am not persuaded that anything turns on that. Mr Groth gave evidence that he had, or “would have” disclosed his history. He did not need to be taken through every detail of his history. In any event, he was asked in cross-examination if he recalled Dr Posel asking him about the x-ray. His response was not clear but he was asked.
Considering all of the evidence, I am not persuaded that Mr Groth has discharged his onus of proof. I am not satisfied, on the balance of probabilities, that he suffered injury to his right hip in the fall on 26 July 2020 by way of aggravation of his pre-existing degenerative condition to which his employment with the main contributing factor. It follows that his claim must fail.
There will be an award for the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established