Hopping v E.M Utick Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hopping v E.M Utick Pty Limited [2021] NSWPIC 119
APPLICANT:	Colin Hopping
RESPONDENT:	E.M Utick Pty Limited
MEMBER:	Mr Michael Wright
DATE OF DECISION:	14 May 2021
CATCHWORDS:	WORKERS COMPENSATION- An application for an order pursuant to section 60(5) of the 1987 Act that the respondent pay for total left knee replacement surgery and related expenses as recommended by the treating specialist, Dr Glase, as a result of injury to the left knee on 28 November 2019; the section 78 notices attached to the ARD noted that liability was accepted for the left knee injury of 28 November 2019, but disputed that the claimed treatment was reasonably necessary as a result of the injury of 28 November 2019; there was an earlier injury to the applicant’s right knee in the course of his employment with the respondent in 2013 with a consequential injury to the left knee in 2016; both the 2013 right knee injury and the consequential 2016 left knee injury or condition were the subject of a deed of release; Held- principles and authorities identified in the now abolished Workers Compensation Commission decision of Murphy v Allity Management still relevant and applicable; found that the injury of 28 November 2019 materially contributed to the need for the proposed surgery; award for the applicant.
DETERMINATIONS MADE:	1. A left total knee replacement as proposed by Dr Glase is reasonably necessary as a result of injury sustained by the applicant on 28 November 2019.
ORDERS MADE	2. The respondent to pay the costs of and incidental to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

This is an application by Colin Hopping for an order pursuant to section 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent pay for total left knee replacement surgery and related expenses as recommended by his treating specialist,
Dr Glase, as a result of injury to the left knee on 28 November 2019.
The section 78 notices attached to the Application to Resolve a Dispute (the ARD) noted that liability was accepted for the left knee injury of 28 November 2019, but disputed that the claimed treatment was reasonably necessary as a result of the injury of 28 November 2019.
There was an earlier injury to the applicant’s right knee in the course of his employment with the respondent in 2013 with a consequential injury to the left knee in 2016. Both the 2013 right knee injury and the consequential 2016 left knee injury or condition were the subject of a deed of release.

PROCEDURE BEFORE THE COMMISSION

At the conciliation and arbitration conference on 13 April 2021, the applicant was represented by Mr Luke Morgan of counsel, instructed by Ms Karam, solicitor, and the respondent by
Ms Goodman of counsel, instructed by Ms Thomas, solicitor.
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) The ARD and attached documents;
(b) Reply and attached documents, dated 4 March 2021, and

(c) Application to Admit Late Documents dated 12 April 2021, limited to the reports of Dr Peter Gray dated 12 March 2015, 6 April 2015, 17 August 2017, and the Certificate of Determination dated 8 November 2017 and the deed of release dated 22 August 2018 relating to the 2013 right knee injury and consequential 2016 left knee injury. The respondent did not rely upon the reply that was also attached to the Application to Admit Late Documents, as it relied upon the Reply and attached documents referred to at (b) above due to the applicant not proceeding with a previously foreshadowed amendment to the ARD.

Oral Evidence

There was no application to cross-examine the applicant or adduce oral evidence.

FINDINGS AND REASONS

The applicant’s case

The applicant provided a statement dated 20 October 2020. He commenced employment with the respondent in or around 2010. He provided details of previous injuries and conditions. Relevantly, the applicant stated that in about 2014 he had an injury to his right knee at work in the course of his employment with the respondent. Eventually he underwent a total right knee replacement. He stated that he made a good recovery from that injury and was able to return to work on full duties, although his right knee continued to cause him occasional pain and restrictions without affecting his capacity to work.
The applicant also stated that in or around 2016 he had an injury to his left knee while doing a gym rehabilitation program for his right knee. He said that he underwent a left knee arthroscopy for that injury and he fully recovered from that procedure and was able to return to work on full duties one month following the surgery. The applicant stated that after the surgery his left knee was asymptomatic and he did not suffer from any ongoing pain or restrictions in the left knee and had no ongoing impact upon his work capacity. He said that at the time prior to his injury on 28 November 2019 his left knee was asymptomatic and did not cause him any pain or restrictions.
The applicant stated that on 28 November 2019 he was loading a truck whilst on a forklift. He said this was a difficult job as the loading area at work was on a significant slope of about 22 degrees. As he exited the forklift he misplaced his footing on the sloped surface and as he went to stand up his left knee buckled under him and he felt a loud crack at his left knee followed by a wave of pain. The applicant stated that as a result, he fell over and rolled on the ground.
The applicant’s statement sets out the progression of his left knee symptoms and treatment. Following the injury on 28 November 2019, on the same day he consulted his local GP,
Dr Dolezal. The applicant said that he had restricted range of movement, swelling and tenderness and was struggling to weight bear on his left leg and he had a noticeable limp. The applicant said he was referred for an x-ray and MRI of the left knee. On 2 December 2019 he underwent the x-ray of the left knee and on 4 December 2019 he underwent the MRI of the left knee. On 13 December 2019, with continuing pain, swelling and restricted extension the applicant was referred to an orthopaedic surgeon, Dr Glase.
At this point, I note that the applicant had previously been treated by Dr Glase in 2016 for his prior left knee condition. Dr Glase performed an arthroscopy of the left knee, with partial medial meniscectomy on 12 May 2016 (ARD 468).
The applicant stated that he consulted with Dr Glase on 16 December 2019. The applicant said that Dr Glase recommended conservative treatment, although surgery might be required. Dr Glase referred the applicant for a cortisone injection, which he underwent on the same day. This did not provide significant pain relief, according to the applicant. In a subsequent consultation with Dr Glase in early January 2020, the applicant accepted
Dr Glase’s recommendation for a left knee arthroscopy.
On 31 January 2020 the applicant underwent the left knee arthroscopy performed by
Dr Glase. The applicant said that the surgery itself went well without complication but his pain and restrictions worsened following the operation. He said that he consulted Dr Dolezal on 20 February 2020 with severe pain in his left knee, aggravated with lifting, bending or twisting and his left knee was beginning to click and lock and in the mornings his left knee was stiff and would crack when he moved. The applicant said that he was feeling depressed and isolated and he asked for a clearance to return to work on light duties, which he did in about early March 2020.
The applicant remained with left knee swelling and pain and he again consulted Dr Glase on 3 April 2020. Although he was disappointed to hear it, the applicant accepted the recommendation of Dr Glase to have a total left knee replacement.
The applicant stated that throughout the rest of 2020 he continued with the same left knee symptoms and he struggled to straighten or stretch his left knee and he continued to walk with a limp. He could only remain walking or standing for about 20 minutes before having to sit down and rest and he struggled to bend over, kneel or squat and he relies heavily on his wife to help him with daily activities such as getting changed in the mornings, cleaning around the house and doing the washing. The applicant continued to consult with his GP on a monthly basis but did not continue to consult Dr Glase following the denial of liability by the insurer for the surgery. The applicant said that he continued to take a range of pain medication.
Dr Glase had previously treated the applicant’s left knee in 2016. In his short treating report of 29 April 2016 Dr Glase reviewed an MRI of the left knee, apparently taken in April 2016, and noted only that the left knee showed a significant tear in the medial meniscus. He performed an arthroscopy and partial medial meniscectomy of the left knee and in his report of 12 May 2016 he reported that there was an extensive tear in the posterior horn of the medial meniscus and grade II chondral damage was found to the medial compartment and grade III – IV chondral damage to the patellar articular cartilage.
Following the injury on 28 November 2019, Dr Glase provided reports dated 16 December 2019, 17 January 2020 and 28 April 2020.
In his report dated 16 December 2019, Dr Glase recorded history of recent injury to the left knee at work when the applicant jumped down from his forklift when he twisted through the knee and felt a crack within the joint and had immediate pain and later swelling. Dr Glase noted that since then he has complained of painful catching about the medial aspect of the joint. Dr Glase noted significant past history for a right total knee replacement about six years previously by Dr Caldwell. Dr Glase noted a recent MRI of the left knee showed patellofemoral degenerative change of long-standing and significant medial meniscal pathology and some early minor chondral damage affecting the medial apartment. Dr Glase reported that the applicant had osteoarthritic changes in the left knee as well as meniscal degeneration. He injected the left knee with celestone but if the knee did not settle then he would be best managed with left knee arthroscopy.
Dr Glase in his report of 17 January 2020 to the insurer requested approval for left knee arthroscopy due to ongoing problems. He noted a significant medial meniscal tear that hopefully was the cause of the majority of the symptoms.
In his report to the insurer dated 28 April 2020, Dr Glase advised that the applicant had advanced osteoarthritic change in the left knee and grade IV full thickness chondral loss to the patellofemoral joint and a small area of the medial compartment of the left knee. He noted that recent arthroscopy failed to give relief and the applicant now had chronic pain and significant functional restriction of the left knee.
Dr Hyde Page provided a report dated 30 October 2020 to the applicant’s solicitors following examination of the applicant on the same date. Dr Hyde Page recorded a history that the applicant had an acute injury to his left knee at work on 28 November 2019 when he jumped out of the forklift and the surface was on a slight slope. He put his left foot down and his left knee collapsed from under him and he fell to the ground. He had severe pain and he could only move with great difficulty and he had to go off work. Dr Hyde Page noted the investigations and treatment provided by Dr Glase following the injury of 28 November 2019 as well as the earlier treatment provided in 2016. Dr Hyde Page did a partial medial meniscectomy and it was observed that there had been a previous partial medial meniscectomy and a lot of chondral loose bodies and significant patellofemoral and medial compartment osteoarthritis. The left knee did not improve after the arthroscopy.
Dr Hyde Page recorded that the applicant felt that the pain in his left knee is overall worse now than when he suffered the injury at the end of November 2019, with generalised pain, catching and locking of the knee, walking for only 10 minutes climbing up and down stairs. It was noted that the applicant is on strong pain medication.
In terms of relevant past health, Dr Hyde Page noted the successful right total knee replacement. Dr Hyde Page recorded that while rehabilitating and having physiotherapy after the total knee replacement, the applicant suffered acute injury to the left knee while strengthening both legs in the physiotherapy gym. Dr Hyde Page noted the report of the GP, Dr JB, who recorded on 8 March 2016 the injury in the gym and indicated that this was a sudden acute left knee injury where he had probably suffered a medial meniscus tear and an MRI scan was organised. Dr Hyde Page noted the report of Dr Glase a report of the medial meniscus tear in the left knee and some osteoarthritic changes in the knee, with left knee arthroscopy in May 2016 involving partial medial meniscectomy and chondroplasty. Dr Hyde Page noted that this was the only pre-existent injury to the left knee and the applicant had a good result following the first left knee arthroscopy in May 2016 up until the acute injury suffered at work on 28 November 2019. Dr Hyde Page did note that following the right total knee reconstruction for a few months in 2015 the applicant favoured his right knee with increased stress on the left knee as he took a long time to recover from the right total knee reconstruction.
In reviewing investigations undertaken after 28 November 2019, Dr Hyde Page noted the
x-ray of the left knee on 2 December 2019, reported as showing mild joint space narrowing of the medial compartment with subacromial sclerosis, and showing mild osteoarthritic changes of the lateral facet of the patellofemoral joint. MRI scan of the left knee on 10 December 2019 was noted by Dr Hyde Page as reported to show a complex tear of the medial meniscus, prominent meniscal truncation and volume loss and this would be a result of the applicant’s original knee arthroscopy and partial medial meniscectomy. Also noted were tricompartmental degenerative changes most prominent in the patellofemoral joint and also bony oedema within the medial and lateral plateau with some chondral cystic changes probably secondary to degenerative changes.
In relation to the prior 2016 left knee injury, Dr Hyde Page noted that the applicant had an MRI scan of the left knee that showed he suffered a medial meniscus tear. He recorded that Dr Glase did a left knee arthroscopy after that injury and did a partial medial meniscectomy. Dr Hyde Page recorded that patellofemoral degenerative changes were noted but the applicant had a reasonably normal medial compartment. He noted that over the next few years the left knee settled down well, then with the further acute work-related left knee injury on 28 November 2019, the left knee literally buckled from under the applicant and became painful and swollen.
Dr Hyde Page considered that the disability in the applicant’s left knee, with persistent pain and stiffness where he now needs a total knee replacement is consequential to both work injuries, that is the 2016 injury and the injury of 28 November 2019. He also considered that the arthroscopy following the injury of 28 November 2019 was not successful because there had been significant progression of osteoarthritis in the left knee since the first arthroscopy in 2016.
Dr Hyde Page also considered that the deterioration in the left knee is both secondary to the original 2016 injury and partial medial meniscectomy, as well as the further acute work injury on 28 November 2019. Dr Hyde Page was of the opinion that both the injuries to left knee of 2016 and 28 November 2019, as well as the general nature of the applicant’s manual work in the interim, is the main contributing factor to his present left knee injury and condition, particularly after the initial partial medial meniscectomy in 2016, as well as the acute aggravation caused by the knee collapsing on him on 28 November 2019. I note that a third possible factor has been suggested, that is the general nature of interim manual work between 2016 and November 2019. However, in my view this is not determinative of the matter when regard is had to the material contribution test, as discussed below.
I note the lengthy clinical notes of the treating medical practice, The Corner Family Surgery, record a series of injections into the left knee in 2018 and 2019.
Mr Morgan submitted that the respondent had accepted liability for the frank injury of 28 November 2019 with payments being made by the respondent for weekly compensation and medical expenses including the arthroscopy performed by Dr Glase, as shown in the list of payments attached to the ARD. Mr Morgan submitted that the relevant enquiry is whether the injury of 28 November 2019 materially contributed to the need for the left total knee replacement surgery.
It was submitted for the applicant that the chronology or sequence of events assists in evaluating the contribution of the incident of 28 November 2019 to the question of whether the effect of that incident was a material contribution to the left knee condition for which the proposed total knee replacement surgery was required.
Mr Morgan submitted that having regard to the history of treatment as shown in the reports of Dr Glase, and that prior to the subject injury the applicant was working full-time and against that background the applicant had a significant deterioration in his condition caused by the injury of 28 November 2019. It was submitted that the opinion of Dr Hyde Page should be preferred to that of Dr Powell in finding that the subject injury made a material contribution to the need for the proposed surgery.

The respondent’s case

The respondent relied upon the reports of Dr Peter Gray dated 12 March 2015, 6 April 2016 and 17 August 2017. In the first report, Dr Gray dealt with the right knee condition. In the latter reports, Dr Gray also dealt with the left knee condition following the left knee injury in March 2016.
In the report of 6 April 2016, Dr Gray recorded a history of the injury of March 2016. He reviewed an MRI scan of 11 March 2016 which demonstrated a tear involving the posterior horn of the medial meniscus with a displaced flap component into the posterior intercondylar notch and another displaced fragment into the inferomedial recess of the tibial plateau as well as evidence of moderate chondral wear in the medial compartment and evidence of articular cartilage wear in the lateral facet of the patella. Dr Gray was of the opinion that the applicant sustained an acute tear of the left medial meniscus. Dr Gray also opined that there was evidence of early articular cartilage wear both in the patellofemoral joint and in the medial compartment of the left knee. Dr Gray was also of the opinion that in undertaking an arthroscopic procedure ultimately there will be progression of these where changes in the knee and that eventually a total knee replacement will probably be indicated, although the longer the definitive knee replacement can be delayed the better.
In his report of 17 August 2017, Dr Gray recorded restrictions on activities and that the applicant was currently aware of pain in both knees and both appear to equally inhibit his comfortable mobility and complains of a constant ache in both knees which fluctuates in intensity depending on activity. Dr Gray recorded restrictions in walking distance, standing and sitting. Dr Gray also noted that there had been no episodes of giving way and the applicant was not aware of any increase in swelling with activity and there was no locking in his knees.

Dr Gray reviewed an MRI scan of the left knee dated 8 June 2016. He was of the opinion that this demonstrated extensive bone marrow oedema in the medial femoral condyle and to a lesser extent the medial tibial plateau and noted that this was obviously a post arthroscopic meniscectomy MRI scan as there was evidence of resection of the posterior horn and part of the body of the medial meniscus. Dr Gray compared that MRI scan with the preoperative MRI scan of 11 March 2016 and noted that the changes in the most recent MRI scan were consistent with an infraction injury involving the medial femoral condyle, the medial tibial plateau, post partial medial meniscectomy. In the context of considering a deduction of permanent impairment assessment for a pre-existing injury, Dr Gray was of the opinion that, while acknowledging that the applicant may have had loss of articular cartilage in the joint prior to the March 2016 injury, the inter-articular cartilaginous debris suggested an acute fresh trauma with a sheer injury to the articular cartilage and for this reason this was an acute fresh injury as he was asymptomatic prior to the injury.
In a report dated 3 June 2020, Dr Powell took a history that the applicant sustained injury to the left knee when he stepped off a forklift toward his left side, put his left foot down and the left knee collapsed beneath him causing him to fall. Dr Powell recorded a subsequent history of symptoms and treatment as noted above.
Dr Powell noted the report of plain x-rays of the left knee dated 2 December 2019 which reported medial patellofemoral compartment osteoarthritis. He reviewed the MRI scan of the left knee dated 4 December 2019 and noted areas of full-thickness chondral loss involving the patellofemoral and medial compartment and a complex tear of the posterior horn of the medial meniscus with features suggestive of previous partial medial meniscectomy with additional reference to a cystic lesion.
Dr Powell noted that the applicant remains symptomatic and reports intermittent though daily generalised anterior and anteromedial knee pain. He noted that the pain is worse with stairs and after getting up from periods of prolonged sitting and the knee clicks, catches and gives way. Dr Powell opined that the aforementioned x-rays and MRI scan demonstrated evidence of tricompartmental osteoarthritis in the medial and patellofemoral compartments with a complex tear of the medial meniscus.
Dr Powell was of the opinion that the proposed left total knee replacement for the management of the applicant’s degenerative left knee pathology was “reasonable and necessary”.
However, in response to the question “do you believe that the need for the total knee replacement to be substantially or mainly attributed to the incident that occurred on the [28/11/2019]?”, Dr Powell opined that the applicant is suffering from a long-standing degenerative disease process and the proposed treatment is not required on the basis of injuries sustained in the course of his employment. Dr Powell was of the view that the workplace incident in November 2019 resulted in increased symptoms though it was inevitable that the applicant would have eventually required a total knee replacement.
Dr Powell was also of the opinion that the applicant’s employment cannot be considered the main contributing factor in the development or aggravation of the underlying degenerative disease process and his current symptoms reflect the natural history of the underlying degenerative condition.
Ms Goodman submitted that Dr Powell was effectively of the opinion that notwithstanding the increase in symptoms following the injury of 28 November 2019, it was inevitable that the left total knee replacement would be required.
Ms Goodman also submitted that Dr Glase did not provide an opinion as to whether the injury of 28 November 2019 made any contribution to the need for the proposed surgery. It was also submitted that there was a distinction between any material contribution by the injury of 28 November 2019 to the need for an arthroscopy and the need for the proposed total knee replacement. Dr Powell provided his opinion that the need for the proposed total knee replacement surgery was the result of the underlying osteoarthritic condition.

Reasons

The only issue in dispute was whether the proposed left total knee replacement was a result of the injury of 28 November 2019.
A leading decision relevant to section 60 (5) of the 1987 Act in the now abolished Workers Compensation Commission was Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), which in turn relied upon authorities including ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656 in elucidating the principles (at 57) that a condition can have multiple causes and so “the work injury does not have to be the only, or even a substantial, because of the need for the relevant treatment before the cost of the treatment is recoverable under section 60 of the 1987 Act.”
The decision in Murphy further identified (at 58), the principle that the applicant only has to establish, relying upon the authority of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, and referring to Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716, that the treatment is reasonably necessary as a result of the injury, “that is, she has to establish that the injury materially contributed to the need for the surgery”. As submitted by both counsel, the principles and authorities identified in Murphy apply in this matter.
The contest between the parties came down to whether the injury of 28 November 2019 materially contributed to the applicant’s left knee condition, or whether the proposed treatment addresses a long-standing pre-existing degenerative disease process that is not required on the basis of injury sustained in the course of employment.
Before turning to consideration of the reports of Dr Hyde Page and Dr Powell, it is necessary to consider the applicant’s history of treatment and functional activities between 2017 and 28 November 2019. The applicant had some pain in both knees in 2017, some record of pain in his left knee in 2018 and 2019 and had periodic injections in his left knee in 2018 and 2019. However, the applicant’s uncontested evidence is that he was able to continue to perform his normal work duties without restrictions, seldom took time off work and wholly engaged with activities of daily living. Adopting some caution as to the applicant’s history of pain in the left knee prior to 28 November 2019, I find on balance that the applicant was not restricted in terms of his work duties or his daily activities of living.
It is also necessary to consider the nature of the incident on 28 November 2019. The applicant’s uncontested evidence was that the loading area at work was on a significant slope of around 22° and as he tried to get out of the forklift he misplaced his footing on the sloped surface and in standing up his left knee buckled under him and he heard a loud crack at his left knee followed by pain. A similar history was recorded in the clinical notes of the treating medical practice referred to above, with reference to a “slanted surface”.
Dr Hyde Page recorded a similar history of injury when the applicant jumped out of the forklift and the surface was on a slight slope, putting his left foot down and his left knee collapsing with severe pain in the left knee. Dr Glase in his report of 16 December 2019, while not recording a sloped surface, did record history of injury to the left knee when the applicant jumped down from his forklift when he twisted through the knee and felt a crack within the joint and had immediate pain and later swelling. While the respondent has not disputed a frank injury, or continuing symptomatology in the left knee, Dr Powell recorded injury to the applicant’s left knee when he stepped off a forklift towards his left side, put his left foot down and the left knee collapsed beneath him causing him to fall and he was able to pick himself up and walked to first aid. I accept and find that the injury was sustained on 28 November 2019 as described by the applicant.
I accept Dr Hyde Page’s view and description that with the further acute left knee injury on 28 November 2019, the applicant’s left knee buckled underneath him and became painful and swollen. I find that, although there is a history of periodic treatment and pain in the left knee following the 2016 arthroscopy and prior to 28 November 2019, and adopting some caution as to the history provided by the applicant in this regard, on balance the injury of 28 November 2019 was an acute injury in the sense that it was a significant change and deterioration. That is, the injury of 28 November 2019 was a significant change and increase in symptomatology, namely pain, a crack felt in the knee, and shortly afterwards swelling, as well as functional restrictions followed by ceasing work and restrictions on daily living activities.
Both Dr Glase and Dr Hyde Page in their reports noted continuing pain and significant functional restrictions in the left knee following the injury of 28 November 2019. Dr Glase in his recommendation for left total knee replacement surgery did not offer an opinion as to the relationship of such continuing symptomatology to any particular work injury. Dr Powell noted continuing symptomatology and restrictions but did not appear to relate such to the injury of 28 November 2019. I find that the applicant’s increased and continuing left knee symptomatology and functional restrictions have continued since the injury of 28 November 2019.
I do not prefer the report of Dr Powell. The report does not consider the incident of 28 November 2019 in terms of an acute injury, rather the left knee gave way whilst getting off the forklift. As critiqued by Dr Hyde Page, Dr Powell did not have the benefit of a clear appreciation of the applicant’s 2016 work injury and subsequent arthroscopy. This is to some extent demonstrated with reference to the 2016 and 2017 reports of Dr Gray. He was of the opinion that the 2016 left knee injury was an acute knee injury against a background of asymptomatic loss of articular cartilage in the patellofemoral joint. In the sense that both injuries were followed by a significant deterioration in the applicant’s symptoms and restrictions, Dr Powell did not consider the contribution, if any, of the acute injuries of 2016 and 2019 to the applicant’s need for the proposed surgery, other than in terms of such injuries not contributing to the underlying pre-existing osteoarthritic condition. In my view,
Dr Gray’s opinion is not inconsistent with the opinion of Dr Hyde Page that the osteoarthritic condition in the left knee deteriorated following the 2016 injury, and deteriorated further following the 28 November 2019 injury. The issue of Dr Gray’s view of the inevitability of a left total knee replacement at some future time is discussed below.
Additionally, in my view, Dr Powell is asked the wrong question by those who qualified him, hence his report adopts the wrong test in giving his opinion. He is asked if he believes that the need for the total knee replacement is to be substantially or mainly attributed to the subject incident. There is a typographical error in the date given to the incident of 28 November 2019. In any event, Dr Powell’s opinion that employment cannot be considered the main contributing factor in the development or aggravation of the underlying degenerative disease process, which the proposed treatment addresses, does not give an opinion as to whether the injury of 28 November 2019 materially contributed to the need for the proposed total knee replacement.
There is the proposition arising from the respondent’s submissions that Dr Powell has ruled out any contribution at all to the applicant’s current condition and need for surgery arising from the 28 November 2019 injury. I am not persuaded that proposition should be accepted in circumstances where Dr Powell has not considered the material contribution test.
Dr Powell’s opinion that the workplace incident in November 2019 resulted in increased symptoms leaves open the question as to whether or not such increased symptoms would be sufficient for a material contribution to the need for surgery. While Dr Hyde Page also considered an incorrect test, as he considered that the higher standard of “the main contributing factor” was satisfied, it is possible to conclude that the lower “material contribution” test was also satisfied. On the other hand, where Dr Powell was of the opinion that the higher test was not met, then it does not necessarily follow, in the absence of specific consideration by Dr Powell, that the lower test of “material contribution” was not met.
There is also the proposition arising from the respondent’s submissions that the need for the left total knee reconstruction was inevitable, regardless of the injury of 28 November 2019, and that the applicant’s medical evidence has not explained why the subject injury has brought forward the need for surgery. Dr Gray was of the opinion that “ultimately” wear changes will progress and “eventually” a total knee replacement will “probably be indicated”, although he was also of the opinion that “the longer the definitive knee replacement can be delayed the better”. Dr Powell was of the opinion that it was inevitable that the applicant “would have eventually required a total knee replacement”. In my view, what is not clear from these opinions as to when such probable or inevitable surgery may have taken place at some time in the future, whether it be in 1 year or 15 years or some other period. Dr Gray’s opinion can be viewed, in my view, as preferring such a procedure at some longer time period in the future. Dr Powell was not definitive in this regard. However, the evidence is that within four years of Dr Gray’s opinion a further injury took place, following which there was significantly increased symptomatology, restrictions, treatment and the recommended total knee replacement. In my view, the material contribution test is satisfied by an account of the circumstances of the injury and the contribution to the need for the surgery as it is now proposed, rather than seeking to explain why an indeterminate future event has been brought forward.
I accept the opinion of Dr Hyde Page. His opinion that there is underlying advanced osteoarthritis in my view is not inconsistent with reports of pain prior to 28 November 2019 and also periodic injections to the left knee prior to 28 November 2019. In my view, his opinion that both the injury in March 2016 and the further injury in November 2019, as well as the interim general nature of his manual work is the main contributing factor to the present left knee injury and condition, is in accordance with the available medical and factual evidence above. The evidence in my view supports a history of acute injury on 28 November 2019 with continuity of significantly increased symptomatology and functional restrictions since then. Dr Hyde Page was of the opinion that the injuries of March 2016 and November 2019, as well as the general nature of his work in the interim, led to the deterioration in the applicant’s left knee with increased osteoarthritis, particularly after he had the initial partial medial meniscectomy in 2016, let alone the acute aggravation caused by the knee collapsing on the applicant on 28 November 2019.
Dr Hyde Page also considered that the “disability” in the applicant’s left knee with persistent pain and stiffness where he now needs a total knee replacement is consequential to both work injuries, that is the 2016 injury and the 28 November 2019 injury, to the left knee. He is of the view that the deterioration in the left knee is both secondary to the original 2016 injury and partial medial meniscectomy, as well as the further acute work injury on 28 November 2019. I do not accept the submission that this opinion should not be accepted as Dr Hyde Page has used a different test, that is with respect to “disability”. In my view, considering the report of Dr Hyde Page as a whole, a fair reading of his opinion in this regard leads in my view to the conclusion that the injury of 28 November 2019 materially contributed to both the applicant’s current condition and the need for surgery.
While both Dr Powell and Dr Hyde Page did not have available to them the 2016 x-ray and MRI scans and reports, nor Dr Gray’s consideration of them, the 2016 investigations are not, in my view, inconsistent with the opinion of Dr Hyde Page. The opinion of, and history recorded by, Dr Hyde Page best fits the available evidence and explains the onset of significantly increased symptoms and restrictions since the 28 November 2019 injury.
Applying a common sense view of causation, and having regard to the chronology of acute injury on 28 November 2019, the onset of significant increased symptoms and restrictions and commencement of increased and more substantial treatment, including that of a further arthroscopy in 2020, and having regard to the opinion of Dr Hyde Page that the injury of 28 November 2019 was one of the factors or reasons which in total amounted to the main contributing factor to the applicant’s present left knee injury and condition and the need for the proposed surgery, it is my view and finding the injury of 28 November 2019 materially contributed to the need for the proposed left total knee reconstruction as recommended by Dr Glase.
I find that the proposed left total knee replacement is reasonably necessary as a result of the injury of 28 November 2019.

[2021] NSWPIC 119

14 May 2021