Jimenez v New Food Coatings Pty Ltd t/as Newly Weds Foods

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jimenez v New Food Coatings Pty Ltd t/as Newly Weds Foods [2023] NSWPIC 444
APPLICANT:	Amorsolo Jimenez
RESPONDENT:	New Food Coatings Pty Limited t/as Newly Weds Foods
MEMBER:	Anthony Scarcella
DATE OF DECISION:	4 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury to the right knee disputed; proposed total right knee replacement surgery disputed; contemporaneous evidence; Nguyen v Cosmopolitan Homes; Military Rehabilitation and Compensation Commission v May; Kooragang Cement Pty Ltd v Bates; Zickar v MGH Plastic Industries Pty Ltd; North Coast Area Health Service v Felstead; and Murphy v Allity Management Services Pty Ltd considered and applied; Held – the applicant suffered an injury to the right knee arising out of or in the course of his employment with the respondent on 17 August 2020 within the meaning of sections 4(a) and 9A; the total right knee surgery proposed by Associate Professor Viswanathan is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the total right knee replacement surgery proposed by Associate Professor Viswanathan at the gazetted rates.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to the right knee arising out of or in the course of his employment with the respondent on 17 August 2020 within the meaning of ss 4(a) and 9A of the Workers Compensation Act 1987. 2. The total right knee surgery proposed by Associate Professor Viswanathan is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent on 17 August 2020 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 3. The respondent is to pay for the costs of and ancillary to the total right knee replacement surgery proposed by Associate Professor Viswanathan at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Amorsolo Jimenez, is a 69-year-old man who was employed by the respondent, New Food Coatings Pty Limited t/as Newly Weds Foods (New Food), as a quality officer.
On 17 August 2020, Mr Jimenez alleges that, whilst in the course of his employment, he suddenly tripped whilst walking, fell and landed heavily on his right knee.
On a date that was not apparent on the evidence, Mr Jimenez lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 10 February 2022, Mr Jimenez’s treating orthopaedic surgeon, Associate Professor Sameer Viswanathan, sought urgent approval for Mr Jimenez to undergo a total right knee replacement from Allianz Australia Limited (Allianz), acting as the agent of NSW Self Insurance Corporation (icare).[1]
[1] Application to Resolve a Dispute at page37.
On 5 April 2022, Allianz issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury within the meaning of s 4 of the 1987 Act. Specifically, the dispute notice denied an entitlement to compensation because the main contributing factor to Mr Jimenez’s right knee symptoms and the need for surgery related to his underlying arthritis rather than any work injury.[2]
[2] Application to Resolve a Dispute at pages 8-11.
On 22 March 2023, Mr Jimenez, through his lawyers, requested a review of the decision contained in Allianz’s dispute notice dated 5 April 2023 under s 287A of the 1998 Act.[3]
[3] Application to Resolve a Dispute at page 12.
There was no outcome of any review under s 287A of the 1998 Act issued by Allianz in evidence.
Mr Jimenez, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 1 May 2023 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming the cost of the total right knee replacement proposed by Associate Professor Viswanathan under s 60 of the 1987 Act as a result of the injury sustained in the course of employment with New Food on 17 August 2020.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:
(a) whether Mr Jimenez suffered an injury to his right knee on 17 August 2020 within the meaning of ss 4(a) and 9A of the 1987 Act, and/or
(b) whether Mr Jimenez suffered an aggravation, acceleration, exacerbation or deterioration of any disease process to his right knee deemed to have occurred on 17 August 2020 within the meaning of s 4(b)(ii) of the 1987 Act, and
(c) whether the total right knee replacement surgery proposed by Associate Professor Sameer Viswanathan is reasonably necessary treatment as a result of the injury sustained by Mr Jimenez on 17 August 2020 within the meaning of s 60 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were accepted by me as notified in the dispute notice referred to above following an interlocutory hearing at the commencement of the arbitration hearing.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 25 July 2023. Mr Bruce McManamey of counsel appeared for Mr Jimenez, instructed by Ms Nadine Alawie, solicitor and Mr Lachlan Robison of counsel appeared for New Food, instructed by Mr Jasper Richards, solicitor.
During the conciliation phase Mr Robison, on behalf of New Foods, informed the Commission that it would not be arguing that the proposed surgical procedure (total right knee replacement) is not reasonably necessary but will argue that, if there is a finding of injury to the right knee, there is no causal connection between the injury and the need for the surgery.
During the conciliation phase, an interlocutory issue arose, was discussed and could not be resolved. Mr Jimenez alleged that New Food’s dispute notice under s 78 of the 1998 Act did not deny injury to Mr Jimenez’s right knee on 17 August 2020.
The interlocutory dispute was determined by me during the arbitration phase after hearing the oral submissions of the parties. I granted New Food leave under s 287A of the 1998 Act to dispute injury to the right knee on 17 August 2020.
The oral submissions and my reasons for the determination in relation to the interlocutory issue were sound recorded and the sound recording is available to the parties.
I am satisfied that the parties to the dispute understood 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 dated 1 May 2023 and attached documents, and
(b) Reply to ARD (Reply) dated 22 May 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Amorsolo Jimenez’s evidence

In evidence there is a statement by Mr Jimenez dated 6 July 2022. I will now refer to the relevant parts of that statement.
Mr Jimenez stated that prior to the subject injury, he did not suffer from any medical conditions or injuries that had any significant or ongoing impacts on his capacity to work or to complete his daily duties. He had never received a diagnosis of arthritis, nor had he experienced any pain or restrictions in his right knee. He considered himself to be healthy, fit and highly capable at handling the physical demands of his employment. He was able to wholly engage with activities of daily living without compromise and he seldom took time off work.
Mr Jimenez stated that, in 2018, he commenced employment with New Food as a full-time quality officer. The role of a quality officer involved monitoring the quality of materials and products; designing and executing laboratory testing; calibrating, adjusting and cleaning laboratory equipment; recording, analysing and reviewing test results; and performing incidental general duties.
Mr Jimenez stated that, on 17 August 2020, he had finished work in the laboratory and was walking to the parking lot at about 11.00pm. He found it difficult to see because it was dark and there were no lights. As he walked to his car, he tripped over a wheel stop and fell forward onto his knees and elbows, landing heavily on the concrete. He felt pain in his knees and elbows and was unable to move for some time.
Mr Jimenez stated that he eventually got up and limped back to the laboratory in extreme pain. He reported his fall to his colleagues. He rested for a while and then went home. The right knee, in particular, continued to ache and he took some Panadol. The Panadol did not have any significant effect and his right knee continued to ache “long after” his injury.[4]
[4] ARD at page 2 at [13].
Mr Jimenez stated that, following the injury on 17 August 2020, he consulted Dr Armando Alcantara, general practitioner. He informed Dr Alcantara about the fall and was advised to take Panadol. He believed that the aching pains in his right knee would resolve with time and so, he did not seek further treatment at that time.
Mr Jimenez stated that from the date of his injury to May 2021, he suffered from ongoing pain and restrictions in his right knee but continued to work despite the pain because he did not want to lose his job. During that period, he took Panadol but it was not very effective. The pain in his right knee became progressively worse over time and he decided that he could not continue working without seeking more effective treatment.
Mr Jimenez stated that, in about May 2021, he consulted Dr Alcantara, who noted that the condition of his right knee had significantly deteriorated. Dr Alcantara suggested initiating the workers compensation process. As Dr Alcantara did not specialise in such claims, he was referred to Dr Ajit Bhalla, general practitioner, in the same medical practice.
Mr Jimenez stated that, in about May 2021, he consulted Dr Bhalla, who referred him for an MRI scan of his right knee and referred him to Mr Nathan Howes, physiotherapist.
Mr Jimenez stated that the focus of his sessions of physiotherapy with Mr Howes was to reduce his pain and strengthen his right knee. He underwent treatment on a regular basis but continued to experience aching pains in his right knee without permanent relief.
Mr Jimenez stated that, on about 21 May 2021, he underwent an MRI scan of his right knee that demonstrated severe arthritis and an accumulation of excess fluid in the knee.
Mr Jimenez stated that, in about July 2021, he consulted Dr Bhalla, who referred him to Dr Samir Viswanathan, orthopaedic surgeon.
Mr Jimenez stated that, on about 29 July 2021, he consulted Dr Viswanathan complaining of constant pain in his right knee and difficulty walking. Dr Viswanathan subsequently recommended knee replacement surgery.
Mr Jimenez stated that, on about 10 February 2022, he consulted Dr Viswanathan complaining of unbearable right knee pain and that he was struggling to stand on his right leg. Dr Viswanathan emphasised that knee replacement surgery was necessary.
Mr Jimenez stated that, since his claim was denied in April 2022, he had been unable to receive treatment by way of physiotherapy, specialist consultations or surgery in respect of his right knee. He tried to self-manage his symptoms with medication but this was ineffective. He continues to suffer from pain in his right knee in the form of a constant dull ache when at rest and such pain is easily aggravated by prolonged standing or walking. He has to sit every 30 minutes at work to give his right knee a break and alleviate pain. He wakes frequently during the night. The right knee always feels unstable and he has fallen over on many occasions when his right knee gave way.
Mr Jimenez stated that his current treatment consisted of consultations with Dr Bhalla and the ingestion of pain medication.
Mr Jimenez provided a detailed list of restrictions and disabilities resulting from the injury to his right knee on 17 August 2020. They included constant pain in the right knee; restricted movement in the right knee; aggravation of pain in the right knee on walking, prolonged sitting, prolonged standing, driving or sitting in a motor vehicle; lifting heavy objects, and in cold weather; and weakness in the right knee.
In respect of Allianz’s dispute notice dated 5 April 2022 declining liability for his workplace injury, Mr Jimenez maintained that he had never experienced any pain or restrictions in his right knee prior to the injury. He was able to carry out his usual daily activities, work duties and household chores without taking a break. He never required any treatment for his right knee prior to the subject injury.
Mr Jimenez stated that both Dr Bhalla and Dr Viswanathan had urged him to undergo a total right knee replacement before the condition in his right knee deteriorated even further. He believes that he requires the surgery now because he still suffers from severe pain, restrictions, discomfort and stiffness in his right knee that affect him significantly.
Mr Jimenez stated that he had exhausted all conservative treatment options and that surgery was now his last resort to find lasting relief from his symptoms. He would love to continue working and he expected to continue working long after he turned 70 years of age. Work gave him purpose and meaning and he now feels lost due to his inability to work. He feels that the surgery to his right knee could be life changing and give him the chance to live a less restricted life. He is desperate to obtain some form of relief from his symptoms.

The treating medical evidence

Mr Jimenez’s general practitioners, Dr Alcantara and Dr Bhalla, were in the medical practice known as Patrick Street Medical Centre. There were no clinical records pertaining to Mr Jimenez from the Patrick Street Medical Centre in evidence. At the preliminary conference on 30 May 2023, I granted New Food leave to issue a Direction for Production on Patrick Street Medical Centre. During the course of the arbitration hearing, following my enquiry, counsel for New Food advised that the Direction for Production had not been lodged with the Commission by New Food.
On 21 May 2021, Mr Jimenez underwent an MRI scan of his right knee by Dr Murray Bartlett, radiologist. Dr Bartlett recorded in his report dated 21 May 2021, under the heading clinical notes, a “fall at work”.[5] Dr Bartlett concluded that there was advanced degenerative change in the lateral and patellofemoral compartments of the right knee that was in the moderate to severe range. He reported patchy bone marrow oedema; a macerated lateral meniscus; a knee joint effusion; and a ruptured Baker’s cyst.
[5] ARD page 21.
On 29 July 2021, Mr Jimenez consulted Associate Professor Viswanathan on the referral of Dr Bhalla and provided a report to the latter on the same date.[6]
[6] ARD at page 13.
In his report, Associate Professor Viswanathan noted that Mr Jimenez had experienced a fall in August 2020 and a fall in December 2020. He also noted that, prior to the falls, Mr Jimenez had no major issues and was able to walk and climb stairs. However, over the last six months or so he had experienced ongoing pain in his left knee, night pain, limited exercise tolerance and difficulty climbing stairs. The reference to the left knee appeared to be a typographical error.
Associate Professor Viswanathan observed that the MRI scan of the right knee demonstrated advanced lateral compartment and patellofemoral compartment arthritis. On examination, he observed that Mr Jimenez had a little pain in his right hip but was able to range his right knee from 20° short of full extension through to about 90° of flexion. Cruciate and collateral ligaments were stable. He observed that Mr Jimenez had a very tender lateral joint line and a small effusion in his right knee.
Associate Professor Viswanathan opined that Mr Jimenez had a fairly advanced lateral compartment and patellofemoral compartment arthritis and that nothing short of a knee replacement would be of any use. He suggested trying to improve the pain with anti-inflammatories and possibly an injection but that, ultimately, he would require a knee replacement.
On 10 February 2022, Associate Professor Viswanathan examined Mr Jimenez with a physiotherapist and reported to Dr Bhalla that Mr Jimenez had decided to go ahead with the recommended knee replacement surgery.[7] Associate Professor Viswanathan opined that, realistically, he would need to go ahead and perform knee replacement surgery, taking into consideration Mr Jimenez’s advanced arthritis and his age. In this regard, he intended to seek approval.
[7] ARD at page 14.
On 10 February 2022, Associate Professor Viswanathan sought urgent pre-approval, on behalf of Mr Jimenez, for total right knee replacement surgery at Campbelltown Private Hospital and provided a quotation for the same.[8]
[8] ARD at page 37.
On 15 June 2022, Associate Professor Viswanathan reported to Dr Bhalla.[9] It was confirmed that the history provided was one of a fall in August 2020 and a fall in December 2020 and that since those falls, Mr Jimenez had experienced ongoing pain in his right knee that had not relented. Prior to the falls, Mr Jimenez had not experienced any issues with his right knee.
[9] ARD at pages 16-17.
Associate Professor Viswanathan confirmed that Mr Jimenez had last consulted him with a physiotherapist in February 2022 and that he reported that his right knee pain had been unrelenting and had not settled. Associate Professor Viswanathan confirmed that Mr Jimenez’s investigations had demonstrated tricompartmental arthritis and that, at his age, the next realistic option was knee replacement surgery.
In respect of causation, Associate Professor Viswanathan opined that Mr Jimenez had experienced two separate falls in 2020, which led to an exacerbation of his most likely pre-existing but asymptomatic right knee arthritis. Employment was the main cause of Mr Jimenez’s current condition, as prior to the injury he had experienced no pain and was completely asymptomatic. Since the falls, he had experienced ongoing pain that had not receded and the falls were responsible for an aggravation or exacerbation of an underlying problem that had been asymptomatic.
Associate Professor Viswanathan referred to the report of Dr Paul Robinson that was commissioned by Allianz as follows:
“I agree with Dr Robinson’s assessment that his [Mr Jimenez] arthritis was pre-existing, however, it was asymptomatic prior to the fall and the fall which was sustained at the workplace has now created an exacerbation that will not settle and will interfere with his ability to get back to work, so I believe his employer is liable for this treatment.”[10]
[10] ARD at pages 16-17.
In respect of Mr Jimenez’s capacity to work, Associate Professor Viswanathan noted that Mr Jimenez had not been able to return to his previous duties because of ongoing pain that was interfering with his ability to work. He did not believe that Mr Jimenez would be able to return to his previous duties unless he had the surgical condition corrected. In this respect, the treatment proposed was a total right knee replacement. He anticipated six weeks to recover to a point where he could walk unassisted and most likely, three months to a point where he could return to some limited duties. It would most likely be six months for him to return to his previous duties post-surgery.
Associate Professor Viswanathan was optimistic in respect of Mr Jimenez’s future prognosis if he were to undergo the total right knee replacement and expected that he would be able to work until retirement in his chosen duties as a laboratory technician. However, he opined that if Mr Jimenez did not undergo the proposed surgery, he would not be able to return to his previous role and his arthritis would continue to exacerbate and prevent him from returning to gainful employment in that field.

Dr Bhalla prepared a report in respect of Mr Jimenez dated 6 October 2022.[11] The report appeared to be addressed to Mr Jimenez and responded to questions posed to Dr Bhalla. In response to a question regarding the history of injury, Dr Bhalla referred to an injury to the right knee following a fall in early November 2020 and noted that Mr Jimenez had consulted a general practitioner but that no workers compensation claim had been submitted at that time. Dr Bhalla then went on to report that the said fall was on the background to a previous injury in March 2021, which clearly did not make sense. However, later in his report, Dr Bhalla stated that he was unable to comment on the 17 August 2020 fall because Mr Jimenez had consulted other general practitioners many times following his fall at work. He then went on to state that the injury occurred following a fall in the work place car park in the dark. Dr Bhalla then referred to a sensation of the knee giving way.
[11] ARD at pages 19-20.
Dr Bhalla diagnosed a tear of the right lateral meniscus on a background of advanced degenerative changes in the right knee. He described the disabilities as pain on mobilisation, reduced range of motion of the right knee and right knee joint instability.
In respect of causation, Dr Bhalla opined that Mr Jimenez’s right knee pain resulted from the fall sustained during the course of his employment that had aggravated and exacerbated a significant pre-existing joint pathology.
In respect of Dr Robinson’s report dated 10 March 2022, Dr Bhalla commented as follows:
“The report from Dr Paul Robinson is detailed and accurate in its historical review or clinical information. His opinion is valid in declinature as there is very significant osteoarthritis of the knee joint and that his current symptoms produced may very well reflect the natural history of the underlying arthritis. However, the patient now has a functional limitation and reduced quality of life that was brought on earlier as a result of his fall.”[12]
[12] ARD at page 19.
In respect of Mr Jimenez’s work capacity, Dr Bhalla opined that he may be able to continue his usual duties once his injury was treated but would continue to experience pain due to the pre-existing underlying severe osteoarthritis. Dr Bhalla further opined that Mr Jimenez’s future work capacity would be reduced for any roles that required manual labour or frequent movements such as bending, climbing or extended periods of walking.
Dr Bhalla recommended the proposed right knee surgery because the fall at work had resulted in an aggravation and exacerbation that Mr Jimenez may not have had to endure until a future date. He opined that, with such treatment, Mr Jimenez may return to work within 12 months of the surgical procedure.
In evidence, were the clinical records of Mr Jimenez produced by Dr Susheel Manambrakkat, consultant psychiatrist, of The Hills Private Hospital.[13] The clinical records disclosed that Mr Jimenez was referred to Dr Manambrakkat by Dr Bhalla for an opinion and management of post-traumatic stress disorder with mixed anxiety and depression on 14 June 2022. The clinical records disclosed that Dr Manambrakkat diagnosed Mr Jimenez as having suffered major depression with symptoms of post-traumatic stress disorder secondary to alleged workplace bullying whilst employed by New Food, which is not part of the present claim.

The forensic medical evidence

[13] ARD at pages 22-36.

Dr Paul Robinson: 10 March 2022

On 4 March 2022, Mr Jimenez consulted Dr Paul Robinson, orthopaedic surgeon, at the request of Allianz. In evidence, there is a report by Dr Robinson dated 10 March 2022.[14] I will now refer to the relevant parts of that report.
[14] Reply at pages 1-9.
Dr Robinson reported that Mr Jimenez presented to the consultation alone and that, whilst there was some difficulty in communication, a satisfactory history was obtained.
Dr Robinson took a history of two injuries. The first being on 9 March 2021 when, after parking his vehicle at work, Mr Jimenez slipped on a muddy slope resulting in a twisting stress to his right knee. The second injury occurred on 11 December 2021, when Mr Jimenez had a fall at work landing on his right hand and injuring his right elbow and right little finger.
Mr Jimenez reported to Dr Robinson that he had pain in his right knee on a daily basis that was not constantly present but increased with walking or standing for more than 30 minutes. Swelling did occur. There was a feeling of the knee giving way and he had actually fallen down on one occasion without injuring himself. Occasionally, pain in the right knee awakened him. There was stiffness in the right knee, particularly in the mornings. He had to sit every 30 minutes at work in order to return the knee to a satisfactory state to enable him to resume work.
Dr Robinson reported that Mr Jimenez denied any past history of knee pain.
Mr Jimenez reported to Dr Robinson that he currently worked 40 hours per week and wished to continue to do so until over 70 years of age. There was a reported diminished capacity for driving since injury. He undertook household chores only as required. The pain in his right knee, in particular, was present at the end of the working day. Dr Robinson attempted to ascertain whether Mr Jimenez performed any gardening prior to March 2021 but was unable to elicit a satisfactory answer.
On examination of Mr Jimenez’s right knee, Dr Robinson observed a hesitant gait; an ability to crouch to 90° before pain in the right side occurred; both knees exhibited a varus deformity, more so on the right; range of movement of the right knee was from 20° to 100° of flexion; range of movement of the left knee was from 20° to 130° of flexion; there was tenderness over the lateral joint margin of the right knee; there was pain on flexion and rotation of the right knee, both medially and laterally; stability of all ligaments, cruciate, medial and lateral was satisfactory; circumference of the right quadriceps was 43cm at 6cm above the patella; circumference of the left quadriceps was 44cm at 6cm above the patella; and there was mild crepitus on flexion and extension of the right knee in the patellofemoral joint.
Dr Robinson reviewed Mr Jimenez’s MRI scan report dated 21 May 2021 and observed that it demonstrated moderate to severe advanced degenerative change in the lateral compartment and also the patellofemoral joint; a tear of the lateral meniscus that was stated to be macerated; and marginal osteophyte formation in keeping with degenerative change.
Dr Robinson noted that Mr Jimenez’s first fall was of a twisting nature to his right knee and resulted in pain that he had not experienced before. He opined that there was clinical and radiological evidence of moderate to severe arthritis affecting the right knee joint and that there had been an exacerbation of the problems associated with that. However, the underlying cause of Mr Jimenez’s symptoms was “constitutional in nature and not related in themselves to the severe arthritis as seen”.[15]
[15] Reply at page 5.
In response to the question as to whether the request for a total right knee replacement was related to the fall at work, Dr Robinson stated:
“The request for surgery in the form of a total joint replacement is related to the underlying arthritic changes which were present prior to the accident at work but these were, as mentioned, pre-existing. The irritation which occurred was such that it produced symptoms, but these could have been produced in the natural course of his ADL, and he is now experiencing the symptoms related to the natural history and the underlying arthritis, and is pre-existing.”[16]
[16] Reply at page 5 at [1].
Dr Robinson opined that, after taking into consideration the time spent outside of work performing activities of daily living, home and garden maintenance, sport and recreational pursuits, non-work-related medical/constitutional/hereditary and non-work-related trauma, the main factor causing Mr Jimenez’s problems was the underlying pre-existing constitutional arthritis.
In response to Allianz’s request to outline what he believed was the main contributing factor to the need for the proposed right knee surgery, Dr Robinson responded, “None that I could determine”.[17]
[17] Reply at page 6 at [7].
Dr Robinson opined that anti-inflammatory agents might be helpful in resolving Mr Jimenez’s current problems to some extent.
In response to the question as to what the current indicators were for the proposed surgery, Dr Robinson stated that the current indicator was pain relating to his constitutional arthritis.
Dr Robinson opined that the functional benefits of the proposed surgery, including return to work and return to health, were decreased pain and increased function.
Dr Robinson opined that there was no alternative treatment required provided that Mr Jimenez built up his muscle support with quadriceps exercises. There were no contraindications to Mr Jimenez undergoing the proposed surgery. There were no contraindications for a return to work in his current position, which did not involve extensive crouching, bending, lifting et cetera.
Dr Robinson opined that, if Mr Jimenez underwent the proposed surgery, he would be able to return to light duties after about four to six weeks. The restrictions whilst on light duties would include intermittent sitting and restricting stresses such as crouching, twisting or standing for prolonged periods. He would be able to return to his pre-injury duties in six to eight weeks.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will provide an outline of the parties’ submissions below.

New Food’s submissions

There is a real issue in this case as to what, if anything, happened in the course of Mr Jimenez‘s employment with New Food giving rise to a knee injury. The secondary issue is that, if there is a finding of injury to the right knee, would the Commission be satisfied that it contributed, in a material way, to the need for the proposed surgery.
Mr Jimenez pleaded the date of injury as being 17 August 2020. The mechanism of injury pleaded was a sudden trip and fall landing heavily onto the right knee during the course of his ordinary employment duties. Such description was inconsistent with Mr Jimenez’s evidentiary statement, in that, he stated that it occurred after work in the car park.
In his evidentiary statement, Mr Jimenez was specific in his description of the mechanism of injury, which was important because he provided a very different history elsewhere. He described tripping over a wheel stop in the dark car park, falling forwards onto his knees and elbows and impacting heavily on the hard concrete. He maintained that he had never experienced any pain in his right knee prior to that fall.
In Associate Professor Viswanathan’s report dated 29 July 2021, he reported a fall in
August 2020 and a fall in December 2020. There are problems that arise in this regard. Firstly, in his evidentiary statement, Mr Jimenez did not explain what occurred in the second fall. Secondly, there was a causation issue. Associate Professor Viswanathan said prior to the fall Mr Jimenez was well. However, which fall was he referring to? It was not clear that either or both of the falls occurred at work.
Things become even more confusing in Associate Professor Viswanathan’s report dated 15 June 2022. Again, Associate Professor Viswanathan failed to clearly say that the falls occurred at work and which of the falls caused injury. He sought to apply causation to the falls without explaining how that was the case or whether one fall was more important than the other. Associate Professor Viswanathan stated that Mr Jimenez had an underlying pre-existing arthritis in his right knee that was asymptomatic until the fall and after two subsequent falls had been unable to return to work. So, now there are three falls and not two falls or one fall as is stated in Mr Jimenez’s evidentiary statement.
In his report dated 6 October 2022, Dr Bhalla referred to a fall in early November 2020 involving the right knee, which was not the date nominated in Mr Jimenez’s evidentiary statement. There was also reference to a previous injury in March 2021, which again, was not a date nominated in Mr Jimenez’s evidentiary statement. The two dates referred to by Dr Bhalla were not explained in Mr Jimenez’s evidence. There was no clarification as to which of the dates nominated by Dr Bhalla occurred following a fall in the workplace car park in the dark.
The clinical records of Mr Jimenez produced by Dr Manambrakkat of The Hills Private Hospital appeared only to be relevant to a psychiatric injury claim.
Mr Jimenez bears the onus of proving injury on the balance of probabilities. The confusion around the different dates of injury in the evidence and the confusion around whether all or some of the falls occurred at work would not satisfy the Commission to a degree of actual persuasion that injury has been proved on the balance of probabilities.
The theme of confusion around the different dates of injury and the confusion around whether all or some of the falls occurred at work was developed in the report of Dr Robinson dated 10 March 2022. In describing the history of injury, Dr Robinson referred to two injuries, the first being on 9 March 2021, which is different to the dates nominated in Mr Jimenez’s evidentiary statement. It was also different in respect of the mechanism of the fall, in that, the history taken referred to slipping on a muddy slope in a twisting motion, which was contrary to Mr Jimenez’s evidence that he had tripped on an object in the car park and had fallen directly onto his knees. The second injury on 11 December 2021 referred to by Dr Robinson did not appear to be relevant to the right knee.
When considering Dr Robinson’s report, one should keep in mind what has already been demonstrated in the evidence in the ARD, namely, that there were advanced arthritic changes in Mr Jimenez’s right knee.
Even if the Commission finds that there was an injury to Mr Jimenez’s right knee, the Commission could not take the next necessary step in finding that the injury is contributing to the need for the proposed surgery because of the natural progression of the arthritic condition. This is particularly because of the absence of clinical material in the ARD demonstrating ongoing problems since and because of the fall, whichever fall it may be, as opposed to simply having symptoms in the fall itself and then, at some later stage, because of the natural progress of the disease, there is the need for the proposed surgery.
Dr Robinson opined that the proposed surgery was related to the underlying arthritic changes that were present prior to the injury at work. He also opined that the main factor for Mr Jimenez’s problems was the underlying pre-existing constitutional arthritis and therefore, it followed that there would not be a material contribution as a result of the work injury.
Counsel for New Food conceded that there was some support at a therapeutic level for the likelihood that the proposed surgical procedure would be beneficial, in that, Dr Robinson opined that it would result in decreased pain and increased function.
The Commission would regard Dr Robinson’s report as a balanced one because he made appropriate concessions favouring Mr Jimenez’s case in respect of whether the proposed surgical procedure is reasonably necessary.
There is no contradictor in respect of Dr Robinson’s report. There does not always have to be a contradictor but a lay member of a tribunal would have great difficulty imposing his/her own view of a medical matter where there is really only one independent expert. A forensic decision has been made by Mr Jimenez not to respond to Dr Robinson’s report in a medico-legal way and that is where the evidentiary landscape finishes.

Mr Jimenez’s submissions

Dr Robinson had a history which was a bit hard to follow in terms of the injuries. The dates of injury referred to, namely, 9 March 2021 and 11 December 2021 were clearly incorrect. However, Dr Robinson did take a history of an incident in the car park and the onset of pain at that time. The question for the Commission is whether the role played by the incident in the car park on 17 August 2020 (unchallenged on Mr Jimenez’s statement) was the event that caused the onset of his right knee pain.
When one reads Dr Robinson’s report and superimposes 17 August 2020 on the date 9 March 2021, the incident was of a twisting nature to his right knee (whether it was or was not, does not matter) and it resulted in pain that Mr Jimenez had not experienced prior to the accident.
Dr Robinson accepted that there was an injury to Mr Jimenez’s right knee and that there was an exacerbation of the problems associated with his moderate to severe arthritis affecting the knee joint. He stated that the irritation that occurred was such that it produced symptoms. However, he went on to say that such symptoms could have been produced in the natural course of his activities of daily living and that Mr Jimenez was now experiencing symptoms related to the natural history and the underlying arthritis that was pre-existing. The latter conclusion was a pure ipse dixit and carried no weight.
Dr Robinson stated that the current indicator for the proposed surgery was pain related to Mr Jimenez’s constitutional arthritis. However, when one reads it properly, it was pain related to the exacerbation of the constitutional arthritis. Dr Robinson opined that the anticipated functional benefits of the proposed surgery were decreased pain and increased function.
Mr Jimenez’s evidence was that the onset of right knee pain was a result of the incident in the workplace car park on 17 August 2020. There was no evidence to the contrary. Mr Jimenez described the incident on 17 August 2020 in his evidentiary statement and described the treatment he received. There was a clear history that Mr Jimenez had problems with his right knee from 17 August 2020 onwards and that he soldiered on for as long as he could.
The uncontroverted evidence was that Mr Jimenez had never experienced any pain or restrictions in his right knee prior to the incident in the workplace car park on 17 August 2020. It was the fall on 17 August 2020 that caused the onset of right knee pain.
New Food sought directions for the production of Mr Jimenez’s general practitioner clinical records and had not placed any of those records into evidence. There was no explanation in this regard.
New Food submitted that there was no contradictor to Dr Robinson’s report. Mr Jimenez’s treating orthopaedic surgeon, Associate Professor Viswanathan, is every bit as qualified to provide an opinion as anyone retained to provide a medico-legal opinion. In many instances, a treating orthopaedic surgeon is better placed to provide an opinion because they know the patient better, they see the patient and they treat the patient.
On 29 July 2021, Associate Professor Viswanathan took a history of two falls, one in August and one in December 2020. He had the correct history. There was a fall in December 2020 that resulted in a hand injury. It is quite clear that, when read together, the onset of right knee pain was after the first fall in August 2020 and maybe, exacerbated by the second fall.
In his report dated 15 June 2022, Associate Professor Viswanathan dealt with the issue of causation. There was no doubt about Associate Professor Viswanathan’s opinion. He stated that the injuries sustained by Mr Jimenez were as a result of the fall. Medical imaging demonstrated advanced arthritis in the right knee. He had two separate falls in 2020 that had led to an exacerbation of his arthritis that was most likely pre-existing but asymptomatic. Employment was the main cause of his current condition because prior to the injury he had no pain and was completely asymptomatic. After the fall, Mr Jimenez had ongoing pain which had not receded and hence, the falls were responsible for the aggravation or exacerbation of the previously asymptomatic underlying condition in the right knee. The logic of Associate Professor Viswanathan’s opinion is compelling.

In his report dated 6 October 2022, Dr Bhalla seems to have had the same difficulties as Dr Robinson in respect of dates. He referred to a fall in early November 2020 on the background of a previous injury in March 2021. The latter date could not be correct. However, he then went on to describe a fall in the work car park in the dark. That is a fair description of what happened in 2020. Dr Bhalla opined that Mr Jimenez’s right knee pain resulted from the fall during the course of his employment, in that, it exacerbated significant pre-existing joint pathology. He also opined that Mr Jimenez now had a functional limitation and reduced quality of life that was brought on earlier as a result of his fall. The main reason for surgery was pain.
The Commission would be comfortably satisfied that Mr Jimenez sustained an injury to his right knee and that the need for the proposed surgery was as a result of that injury.

New Food’s submissions in reply

The Commission would not be satisfied that Mr Jimenez sustained an injury in the course of his employment.
The task is really an impossible one in respect of s 4 of the 1987 Act because the Commission would have to make a finding as between all the various alternatives. There cannot simply be a finding that Mr Jimenez was injured in the course of employment and therefore, there is an award in his favour. Factual findings must be made. Was there one fall? Were there two falls? Were there three falls? When did they occur? Was it a trip on a wheel stop? Was it a slip on mud? These findings must be made on the relevant standard. The onus is borne by Mr Jimenez.
The Direction for Production on Patrick Street Medical Centre was never lodged by New Food, probably because of the change in legal representation. There was no forensic decision made not to lodge the Direction for Production. It is usual for the injured worker to attach clinical records to the ARD. The onus is on the injured worker in this regard. The onus is not on the insurer.
Counsel for Mr Jimenez submitted that the major reason for surgery was the pain in his right knee. Dr Bhalla stated that Mr Jimenez would continue to have pain due to the pre-existing underlying severe osteoarthritis. So, even if there is a work injury, the cause of the pain and therefore, the need for surgery is not a work-related matter. Dr Bhalla says that he cannot comment on the 17 August 2020 fall as Mr Jimenez had consulted with other general practitioners many times for his fall at work. Such statement is far from supporting the case on causation. That raised the question of whether one of the other falls was apparently relevant. However, that was not explained.

Mr Jimenez’s further submissions

New Food asserted that there was no injury sustained by Mr Jimenez in the course of his employment, which would seem to assert that there was no injury on 17 August 2020.
Mr Jimenez’s evidence was that he injured his right knee as a result of the fall he described on 17 August 2020. There is no evidence to the contrary. However, it highlighted the difficulty Mr Jimenez was placed in by allowing New Food to run the case it now wants to run, that is, that there was no injury. The criticism of other evidence as to whether or not the subject incident occurred should be weighed up in that light.

FINDINGS AND REASONS

Injury

The legislation and legal principles

Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment.
Section 4(b) of the 1987 Act provides that “injury” includes a “disease injury”, which means 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: s 4(b)(i); and 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: s 4(b)(ii).
Sections 4(b)(i) and 4(b)(ii) of the 1987 Act require that the employment must be the main contributing factor to the injury, namely, the contraction of a disease or the aggravation, acceleration, exacerbation or deterioration of the disease condition.[18] The word “main” in the phrase “main contributing factor” means “chief” or “principal”.[19]
[18] Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013: 8 April 2014).
[19] Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].
Roche DP in State Transit Authority v El-Achi[20] (El-Achi) said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”[21]
[20] State Transit Authority v El-Achi [2015] NSWWCCPD 71.
[21] State Transit Authority v El-Achi [2015] NSWWCCPD 71 at [72].
In AB v AW,[22] Snell DP agreed with the above quoted passage in El-Achi and observed that:
“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.”[23]
[22] AB v AW [2020] NSWWCCPD 9.
[23] AB v AW [2020] NSWWCCPD 9 at [78].
The onus of establishing injury falls on Mr Jimenez and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[24] (Ireland) and Nguyen v Cosmopolitan Homes[25] (Nguyen).
[24] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[25] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[26] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[27] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[26] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[27] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
As Parker ADP observed in Le Twins Pty Ltd v Luo,[28] “[m]ost conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation”.
[28] Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52 at [71].
In order to establish that a “personal injury” has been suffered within the meaning of s 4(a) of the 1987 Act, Mr Jimenez must establish, on the balance of probabilities, that there has been a definite or distinct “physiological change” or “physiological disturbance” in his right knee for the worse which, if not sudden, is at least, identifiable: Kennedy Cleaning Services Pty Ltd v Petkoska[29] (Kennedy) and Military Rehabilitation and Compensation Commission v May[30] (May). The word “injury” refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd[31] (Lyons).
[29] Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45.
[30] Military Rehabilitation and Compensation Commission v May [2016] HCA 19.
[31] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 496.
Zickar v MGH Plastic Industries Pty Ltd[32] (Zickar) highlighted that a worker can rely on injury simpliciter despite the existence of a disease. In Zickar, the High Court of Australia held that the presence of a disease did not preclude reliance on that event as a personal injury. The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or an external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury: North Coast Area Health Service v Felstead.[33]
[32] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310.
[33] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [77].

Consideration and findings

I make no adverse inference against either party in respect of the absence in the evidence before me of Mr Jimenez’s clinical records from Patrick Street Medical Centre.
At the preliminary conference on 30 May 2023, Mr Jimenez’s solicitor, Ms Alawie, advised that she had sought a copy of those clinical records but had not yet received them. Accordingly, I granted leave to New Food’s then solicitor, Ms Tarana Singh, to issue a Direction for the Production of Documents on Patrick Street Medical Centre and that, in the event that the documents were produced promptly, the parties were granted leave to approach the Commission to request the conciliation conference and arbitration hearing on 25 July 2023 to be brought forward to a mutually convenient date and time.
The Commission’s portal confirms that New Food did not lodge a Direction for the Production of Documents on Patrick Street Medical Centre with the Commission. I accept Mr Robison’s submission on behalf of New Food that the failure to lodge the Direction for Production was probably due to the change in New Food’s legal representation that occurred sometime between the preliminary conference and the arbitration hearing and that no forensic decision was made not to lodge the Direction for the Production of Documents.
The absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v Motor Accidents Authority of NSW[34] and Bugat v Fox.[35] Whilst independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a “requirement” that must be satisfied before a Member can feel actual persuasion about the existence of a fact in issue: Department of Aging, Disability and Home Care v Findlay.[36]
[34] Owen v. Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].
[35] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].
[36] Department of Aging, Disability and Home Care v Findlay [2011] NSWWCCPD 65.
In his evidentiary statement dated 6 July 2022, Mr Jimenez stated that, on 17 August 2020, as he walked to his car in the workplace parking lot after he had finished work, he tripped over a wheel stop and fell forward onto his knees and elbows, landing heavily on the concrete.
In his evidentiary statement dated 6 July 2022, Mr Jimenez made no reference to a fall at work on 11 December 2020. However, there appeared to have been a claim lodged by Mr Jimenez with Allianz bearing claim number 3826427 in respect of an upper limb injury in the course of his employment with New Food on 11 December 2020.
In his report dated 29 July 2021, Associate Professor Viswanathan recorded that Mr Jimenez had experienced a fall in August 2020 and a fall in December 2020.
On 29 July 2021 and 15 June 2022, Associate Professor Viswanathan reported to Dr Bhalla that he had taken a history of Mr Jimenez sustaining falls in August 2020 and in December 2020. Yet, Dr Bhalla in his report dated 6 October 2022 referred to a fall in early November 2020 on the background of a previous injury in March 2021, which, chronologically did not make sense and did not align with the history provided to Dr Bhalla by Associate Professor Viswanathan in his reports to him. In his report, Dr Bhalla referred to the report of Dr Robinson. Dr Bhalla’s referral to Dr Robinson’s report is a possible explanation of the chronologically inconsistent reference to an injury in March 2021.
Later in his report, Dr Bhalla stated that he was unable to comment on the 17 August 2020 fall because Mr Jimenez had consulted other general practitioners many times following his fall at work. This was consistent with Mr Jimenez’s evidence that he had first consulted Dr Alcantara after the fall on 17 August 2020; soldiered on at work until his right knee became progressively worse over time; and was passed on to Dr Bhalla in about May 2021, when he initiated the workers compensation process. Dr Bhalla then went on to state that the injury occurred following a fall in the work place car park in the dark. Dr Bhalla also referred to a sensation of the knee giving way.
In his report dated 10 March 2022, which was the only document attached to the Reply, Dr Robinson took a history of an injury on 9 March 2021 when, after parking his vehicle at work, Mr Jimenez slipped on a muddy slope resulting in a twisting stress to his right knee. Dr Robinson took a further history of injury on 11 December 2021, when Mr Jimenez had a fall at work landing on his right hand and injuring his right elbow and right little finger. The dates of injury were inconsistent with Mr Jimenez’s evidence and inconsistent with the history taken by Associate Professor Viswanathan. The date 9 March 2021 was arguably consistent with Dr Bhalla’s chronologically inconsistent date of a previous injury. The description of the injury on 9 March 2021 was inconsistent with Mr Jimenez’s evidence. However, Mr Jimenez’s evidence was that he had fallen over on many occasions since 17 August 2020, when his right knee had given way. Relevantly, I note that Dr Robinson referred to some difficulties in communication with Mr Jimenez at the time of the consultation, although he felt that a satisfactory history had been obtained.
Associate Professor Viswanathan did not provide a description of the mechanism of Mr Jimenez’s falls. It is not unusual for a treating specialist, who is focused on treatment and management, not to refer to the mechanism of injury in reports back to the referring general practitioner.
Dr Bhalla did not provide a description of the mechanism of Mr Jimenez’s falls in his report, other than to say that it occurred in the workplace car park in the dark.
I reject New Food’s submission that Associate Professor Viswanathan did not make it clear that either or both of the falls occurred at work. In his report dated 15 June 2022, Associate Professor Viswanathan opined that employment was the main cause of Mr Jimenez’s current condition, as prior to the injury he had experienced no pain and was completely asymptomatic. Further, a clear inference can be drawn from the urgent pre-approval request for the proposed surgery by Associate Professor Viswanathan to icare on 10 February 2022.
Dr Bhalla diagnosed a tear of the right lateral meniscus on a background of advanced degenerative changes in the right knee. In respect of causation, Dr Bhalla opined that Mr Jimenez’s right knee pain resulted from the fall sustained during the course of his employment that had aggravated and exacerbated a significant pre-existing joint pathology. However, he did not specifically identify the date of the fall when expressing that opinion.
Associate Professor Viswanathan opined that Mr Jimenez had experienced two separate falls in 2020, which led to an exacerbation of his most likely pre-existing but asymptomatic right knee arthritis. He was of the opinion that the workplace fall had created an exacerbation that would not settle.
Dr Robinson noted that Mr Jimenez’s first fall was of a twisting nature to his right knee and resulted in pain that he had not previously experienced. He opined that there was clinical and radiological evidence of moderate to severe arthritis affecting the right knee joint and that there had been an exacerbation of the problems associated with that. Dr Robinson opined that, after taking into consideration the time spent outside of work performing activities of daily living, home and garden maintenance, sport and recreational pursuits, non-work-related medical/constitutional/hereditary and non-work-related trauma, the main factor causing Mr Jimenez’s problems was the underlying pre-existing constitutional arthritis.
New Food submitted that, because there was no contradictor in respect of Dr Robinson’s report, the Commission would have great difficulty imposing its own view of a medical matter where there was really only one independent forensic medical expert. I reject that submission. Associate Professor Viswanathan, an experienced treating orthopaedic surgeon, provided three reports, in two of which, he expressed his expert opinion in respect of causation, appropriate management and treatment.
I have no reason to doubt Mr Jimenez’s credibility despite the inconsistencies referred to above and I accept his evidence for the reasons stated below.
Mr Jimenez first consulted Associate Professor Viswanathan on 29 July 2021, some seven months prior to his consultation with Dr Robinson, where the former recorded the dates of the falls as occurring in August 2020 and December 2020. Dr Bhalla’s report was somewhat difficult to follow but acknowledged a fall in the workplace car park in the dark. He also acknowledged a fall on 17 August 2020 that he could not comment on because other doctors in his practice had consulted Mr Jimenez in respect of the same.
The reference by Dr Robinson to Mr Jimenez’s first fall occurring on 9 March 2021 was inconsistent with the evidence of Mr Jimenez and Associate Professor Viswanathan. However, Dr Robinson did take a history of the first fall as occurring “after parking at work”.[37] Dr Bhalla’s reference to 9 March 2021, being an injury that preceded a fall in early November 2020, was chronologically inconsistent. Dr Robinson’s reference to a second fall occurring on 11 December 2021 appeared to be a typographical error, in that, it should have read 11 December 2020 as it related to the upper limb injury, which was not the subject of this claim. In the heading of Dr Robinson’s report, the date of injury referred to was 11 December 2020.
[37] Reply at page 2.
More curious was the description of the mechanism of the first fall after parking at work recorded by Dr Robinson as being a slip on a muddy slope resulting in a twisting stress to the right knee. Such description is not found anywhere else in the evidence. In this regard, I take into account that Dr Robinson acknowledged that he had experienced some difficulty in communication with Mr Jimenez at the consultation on 4 March 2022.
I prefer the evidence of Associate Professor Viswanathan over that of Dr Robinson. Associate Professor Viswanathan, being the treating orthopaedic surgeon, was in a better position to provide an opinion in respect of causation and make recommendations in respect of appropriate management and treatment. He took a history that was consistent with Mr Jimenez’s evidence. Although he opined that Mr Jimenez had experienced two separate falls in 2020, which led to an exacerbation of his most likely pre-existing but asymptomatic right knee arthritis, it was clear that he accepted that Mr Jimenez’s symptoms commenced after the first fall and that such symptoms gradually deteriorated to the point where he experienced ongoing pain, limited exercise tolerance and difficulty climbing stairs. In his evidence, Mr Jimenez did not attribute any right knee symptoms to the 11 December 2020 fall. In fact, he did not refer to the fall. Nevertheless, Associate Professor Viswanathan opined that both falls led to an exacerbation of the pre-existing but asymptomatic right knee arthritis.

Despite the different date of the first fall and the different description of the mechanism of injury, Dr Robinson accepted that, in his first fall, there was a twisting of Mr Jimenez’s right knee that resulted in pain that he had not experienced before and that there was an irritation of underlying arthritic changes that produced symptoms. However, he concluded that the main factor causing Mr Jimenez’s problems was the underlying constitutional arthritis.
The unchallenged evidence is that Mr Jimenez had never experienced any pain or restrictions in his right knee prior to the fall in the workplace car park on 17 August 2020.
There was no challenge to the MRI finding on 21 May 2021 that Mr Jimenez had advanced moderate to severe degenerative change in the lateral and patellofemoral compartments of the right knee; a patchy bone marrow oedema; a macerated lateral meniscus; a knee joint effusion; and a ruptured Baker’s cyst.
I accept and find that Mr Jimenez sustained an injury to his right knee in his workplace car park on 17 August 2020 when he tripped over a wheel stop, fell forward onto his knees and elbows, landing heavily on the concrete, immediately feeling pain in his knees and elbows.
I accept and find that Mr Jimenez consulted Dr Alcantara following the injury on 17 August 2020 and was advised to take Panadol for the aching pain in his right knee and that he continued to work with New Food.
I find that Mr Jimenez sustained another fall at work with New Food on 11 December 2020, where he sustained an injury to an upper limb. Whilst Associate Professor Viswanathan considered that both falls led to an exacerbation of his pre-existing but asymptomatic right knee arthritis, there was no evidence that Mr Jimenez sustained a further injury or aggravation of his right knee condition on 11 December 2020. The latter finding does not affect Associate Professor Viswanathan’s ultimate opinion as I am satisfied that he accepted that Mr Jimenez’s symptoms commenced after the first fall.
I accept and find that Mr Jimenez continued to work following 17 August 2020 despite ongoing pain because he did not want to lose his job but that the pain in his right knee became progressively worse over time and in about May 2021, he decided that he could not continue working without seeking more effective treatment.
I accept and find Mr Jimenez consulted Dr Alcantara in about May 2021, who referred him to Dr Bhalla in the same medical practice and that the latter referred him for an MRI scan of his right knee.
I accept and find that Mr Jimenez had never experienced any pain or restriction in his right knee prior to the fall in the workplace car park on 17 August 2020.
On the basis of the principles espoused in Zickar, I am satisfied that, despite the fact that Mr Jimenez’s right knee could be characterised as a disease which was present and asymptomatic as at 17 August 2020, it did not preclude reliance on the definite or distinct physiological change or disturbance in his right knee in the form of an aggravation, acceleration, exacerbation or deterioration of a degenerative condition on that date as a “personal injury” within the meaning of s 4(a) of the 1987 Act. The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or an external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.
Accordingly, I am satisfied on the balance of probabilities, to a degree of actual persuasion or affirmative satisfaction, that Mr Jimenez sustained a personal injury arising out of or in the course of his employment with the respondent on 17 August 2020 within the meaning of s 4(a) of the 1987 Act.
The parties made no submissions in relation to s 9A of the 1987 Act. Nevertheless, I have considered the factors set out in s 9A(2) of the 1987 Act. I am satisfied and find that there was a causal relationship between the injury and work on 17 August 2020, that is, there was a connection with his employment which was real and of substance. Accordingly, I am satisfied that Mr Jimenez’s employment was a substantial contributing factor to his injury within the meaning of s 9A of the 1987 Act.

The proposed surgery
The legislation and legal principles

Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay, in addition to any other compensation under the Act, the cost of that treatment or service.
Section 60(5) of the 1987 Act relevantly provides the Commission with jurisdiction to determine a dispute concerning any proposed treatment or service and the compensation that will be payable under s 60 of the 1987 Act in respect of any such proposed treatment or service. In this case, the proposed treatment is the total right knee replacement surgery proposed by Associate Professor Viswanathan.
There are two elements to s 60(1) of the 1987 Act that must be considered. The first element is “as a result of an injury received by a worker”. The second element is that of “reasonably necessary” treatment.
In this matter, it was conceded by New Food that it would not be arguing that the proposed total right knee replacement is not reasonably necessary but rather that, if there is a finding of injury to the right knee, there is no causal connection between the injury and the need for the surgery. Accordingly, there is no need for me to deal with the second element of s 60(1) of the 1987 Act.
Dealing with the first element of s 60(1) of the 1987 Act, namely, “as a result of injury received by a worker”, I am required to conduct a common sense evaluation of the causal chain (Kooragang) to determine whether the total right knee replacement surgery proposed by Associate Professor Viswanathan is as a result of the injury sustained by Mr Jimenez on 17 August 2020.
Murphy v Allity Management Services Pty Ltd[38] referred to Kooragang and is authority for the proposition that an injured worker must establish that the injury materially contributed to the need for the treatment or the surgery. The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Mr Jimenez only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary “as a result of” the injury. That is, he has to establish that the injury materially contributed to the need for the surgery.
[38] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

Consideration and findings

I am satisfied that, applying the common sense test of causation, that the total right knee replacement surgery proposed by Associate Professor Viswanathan is reasonably necessary as a result of the injury, in that, the injury on 17 August 2020 materially contributed to the need for the same for the reasons stated below.
On 15 June 2022, Associate Professor Viswanathan noted the falls in August 2020 and December 2020 and that that since those falls, Mr Jimenez had experienced ongoing pain in his right knee that had not relented. Prior to the falls, Mr Jimenez had not experienced any issues with his right knee. He noted that investigations had demonstrated tricompartmental arthritis and that, at his age, the next realistic option was knee replacement surgery. He opined that the falls were responsible for an aggravation or exacerbation of an underlying right knee arthritis that had been asymptomatic. He opined that the workplace falls had created an exacerbation that would not settle and would interfere with Mr Jimenez’s ability to get back to work. Employment was the main cause of Mr Jimenez’s current condition as, prior to the injury, he was completely asymptomatic.
Dr Bhalla opined that Mr Jimenez now had a functional limitation and reduced quality of life that was brought on earlier as a result of his fall. He recommended the proposed right knee surgery because the fall at work had resulted in an aggravation and exacerbation that Mr Jimenez may not have had to endure until a future date.
Dr Robinson opined that the proposed right knee surgery is related to the underlying arthritic changes which were present prior to the accident at work and that the irritation which occurred was such that it produced symptoms, but those symptoms could have been produced in the natural course of his activities of daily living. Mr Jimenez’s current symptoms related to the natural history and the underlying arthritis which was pre-existing. Therefore, the main factor causing Mr Jimenez’s problems was the underlying pre-existing constitutional arthritis.
I accept Mr Jimenez’s evidence of ongoing worsening right knee pain and restriction on and from 17 August 2020.
I reject New Food’s submission, relying on Dr Robinson’s opinion, that the proposed surgery was related to the pre-existing underlying arthritic changes that were present in Mr Jimenez’s right knee prior to the injury at work; that the main factor for his problems was the underlying pre-existing constitutional arthritis; and that, therefore, it followed that there would not be a material contribution as a result of the work injury. Dr Robinson failed to sufficiently expose his reasoning. Whilst it is accepted that medical experts do not need to provide elaborate or detailed explanations for their conclusions, more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what Dr Robinson has done in this respect. Dr Robinson’s opinion in this regard carried little weight.
On the other hand, Associate Professor Viswanathan sufficiently exposed his reasoning, as summarised in [163] above, to satisfy me that the injury materially contributed to the need for the proposed total right knee replacement surgery. I prefer the opinion of Associate Professor Viswanathan that Mr Jimenez’s ongoing right knee pain was as a result of the exacerbation to his underlying condition that occurred at work on 17 August 2020 and that such exacerbation had not settled.
The need for surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Mr Jimenez only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary “as a result of” the injury. That is, he has to establish that the injury materially contributed to the need for the surgery. I find, for the reasons stated above, that the injury on 17 August 2020 materially contributed to the need for the proposed total right knee replacement surgery.
I find that Mr Jimenez has discharged the onus of proving that the total right knee replacement surgery proposed by Associate Professor Viswanathan is reasonably necessary treatment as a result of the injury sustained by him in the course of his employment with New Food on 17 August 2020.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2023] NSWPIC 444

4 September 2023