Job v Cessnock City Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Job v Cessnock City Council [2022] NSWPIC 536
APPLICANT:	Paul Vere Job
RESPONDENT:	Cessnock City Council
Member:	Deborah Moore
DATE OF DECISION:	28 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim under section 60 of the Workers Compensation Act1987 for total knee replacement surgery; respondent agreed it was a necessary procedure but claimed that the injury was “minor” on a background of pre-existing degenerative disease and did not make a material contribution to the need for surgery; Held – that the incident was not “minor” the applicant having had a functioning knee before the injury which rendered him symptomatic and the need for surgery; opinions of the applicant’s treating specialist and Independent Medical Examiner accepted; respondent to pay the costs of knee surgery.
determinations made:	1. The proposed total knee replacement surgery is reasonably necessary within the meaning of s 60 of the Workers Compensation Act1987 as a result of the injury on 9 April 2019, and the respondent is liable to pay the costs of that surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Paul Vere Job, was employed by the respondent, Cessnock City Council, as a construction team leader performing various physical duties.
During the course of his employment which commenced in about 1981 he sustained a number of injuries to his right knee.
On 9 April 2019 in the course of his work he fell onto his right knee.
He came under the care of Dr Gomes and underwent arthroscopic examination of his right knee joint on 8 July 2019. Liability for this procedure was accepted by the respondent’s insurer, StateCover Mutual Ltd.
In 2020 Dr Gomes recommended Mr Job undergo right total knee joint replacement surgery (TKR).
The costs of this procedure were denied by the insurer in a s 78 Notice dated 3 February 2020 on the grounds that Mr Job had significant pre-existing pathology in his right knee such that TKR surgery “was not work-related.” This was based on the opinion of Dr Powell.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 15 July 2022, Mr Job sought payment for this procedure pursuant to s 60 of the Workers Compensation Act1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

At the conciliation/arbitration hearing of this matter on 8 September 2022, the applicant was represented by Mr Hallion of counsel, instructed by Mr Bechelli, solicitor, and the respondent by Mr Grimes of counsel, instructed by Mr van der Hout, solicitor.
The respondent helpfully conceded that the injury pleaded was by way of an aggravation of a disease and that the TKR procedure was reasonable treatment within the meaning of s 60 of the 1987 act.
The only issue in dispute was whether the injury pleaded made a material contribution to the need for surgery, or whether the surgery was required as a result of a pre-existing condition.
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 Application and attached documents;
(b)     Reply and attached documents, and
(c)     an Application to Admit Late Documents being a report of Dr Powell dated 17 August 2022 admitted by consent.

The legislative framework

Section 60 of the 1987 Act relevantly provides:
“Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service…”
In Rose v Health Commission (NSW) [1986] NSWCC 2Burke CCJ identified the following “general principles” governing whether medical treatment is ‘reasonably necessary’ within the meaning of s 60 of the 1987 Act:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1.Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”

The applicant’s evidence

In a brief statement dated 14 June 2021, Mr Job said:
“During the course of my employment with Cessnock City Council I suffered an injury to my right knee on 9 April 2019.
The work that l perform with Cessnock City Council as a Team Leader is strenuous physical activity.
My treating specialist, Dr Bruno Gomes, has recommended right knee arthroscopy partial meniscectomy and chondroplasty which were performed on 8 August 2019.
Dr Gomes has recommended a total right knee replacement.”
In a supplementary statement dated 31 May 2022 he said:
“Annexed hereto and marked A is a copy of an incident report form number 1552 of Cessnock City Council which relates to an injury to my right knee suffered on 23 July 2002. This injury occurred at Aberdare cemetery whilst walking on uneven ground. I twisted my knee and felt a sharp pain. I continued working that day. I cannot recall if I consulted a doctor in relation to that injury. I do not recall having time off work. My knee was swollen and as far as I can recall it took some lime perhaps days or weeks to settle back down.
Annexed hereto and marked B is a copy of an incident report form number 1554 of Cessnock City Council which relates to an injury to my right knee suffered on 5 March 2003. This injury occurred at the Log of Knowledge Park at Kurri Kurri. I fell into a posthole whilst installing a car barrier and suffered injury to my right knee. I suffered cuts and swelling. I had two days off in relation to that injury. I consulted my general practitioner Dr Kwa.
Annexed hereto and marked C is a copy of an incident report form number 1556 of Cessnock City Council which relates to an injury to my right knee suffered on 25 January 2005. I suffered a swollen knee. I do not recall having any time off work in relation to this injury…
Annexed hereto and marked G is a copy of an incident report form number 3288 of Cessnock City Council which relates to an injury to my right knee suffered on 7 March 2007. This injury occurred when I hit my knee on the side of a trailer. I did not have any time off work. The injury occurred at 6:30am just at the start of my shift and I immediately rested and treated it with ice whilst at work. As I was the team leader, I had the option of staying in the truck and not undertaking any heavy work on that day. I do not recall if I consulted a doctor in relation to that injury.
Annexed hereto and marked H is a copy of an incident report form number 3297 of Cessnock City Council which relates to an injury to my right knee suffered on 12 January 2009 This injury occurred on the job site however I do not recall exactly where it happened. The injury occurred when I slipped off a ladder and struck my right knee against the ladder, I suffered a bruised knee. I did not have any time off work and do not recall if I saw a doctor about the injury.
Annexed hereto and marked I is a copy of an incident report form number 4174 of Cessnock City Council which relates to an injury to my right knee suffered on 9 April 2019. This injury occurred at Aberdeen cemetery when I tripped on a ground protection board and fell heavily on my right knee. The injury occurred late in the afternoon, and I do not recall ceasing work at the time, As a result of this injury, I was off work from 8 August 2019 to 10 October 2019. I returned to work on 11 October 2019 on restricted duties which I stayed on until I retired on 4 December 2021 at 68 years of age.
During the period between the date of the injury of 9 April 2019 to 7 August 2019 I was having difficulty at work with my knee. I was employed as a supervisor. I was able to avoid undertaking heavy work and/or avoiding work that would place strain on my knee…
Throughout the period of my employment with Cessnock City Council of 39 years and 9 months I had been employed as a labourer, truck driver, plant operator, and team leader. I was involved in road construction, laying paths and curbs and gutters, digging trenches and laying pipes and grave digging. This involved digging and shovelling, using crowbars, sledgehammers, crow bars and wack packers all of which placed strain on my knees.
I did a lot of walking on uneven ground. I can say that almost everywhere the ground was uneven which placed stress and strains on both my knees.
I was required to climb in and out of plant, when laying pipes, I would jump into trenches which were at least one metre deep, cause jarring and shock to my knees. When using a spade or shovel I would strike the step of the spade or shovel with my foot. When concreting I spent hours on my knees with only short breaks. When I was undertaking kerb and gutter work, I would be squatting in the same position for most of the day.”
Dr Gomes provided a number of reports.
In his first report dated 3 June 2019 he said:
“Thank you for asking me to see Paul Job about a right knee injury that was sustained at work with a fall. He has suffered anteromedial knee discomfort since and an intermittent catching sensation, which has not resolved.
A CT of the right knee shows at least moderate lateral patellofemoral and medial compartment osteoarthritis…
I wonder whether the recent injury involved a cartilage injury or meniscal tear.
I have organised a right knee MRI…”
In his next report dated 11 June 2019 Dr Gomes said:
“The MRI shows a substantial effusion… the medical meniscus is severely torn…
I think it would be reasonable to offer a right knee arthroscopy, partial medial and lateral meniscectomies and chrondoplasty…”
On 13 September 2019 he wrote:
“I saw Paul Job today, 5.5 weeks after his [surgery].
He reports that the knee is substantially better than it was pre-operatively. He still experiences discomfort…”
On 18 and 23 October he noted some ongoing symptoms.
In a report dated 6 December 2019 he said:
“I saw Paul Job again, to monitor his progress after right knee arthroscopic debridement. He struggled a little bit in the post-operative period, which is unsurprising, given the cartilage damage to the knee, which is severe medially.
As a consequence, I tried a corticosteroid injection into the knee 3 weeks ago, which did not help his cause. He is struggling significantly, with an antalgic gait. There is obvious swelling in the knee.
The work associated injury, has taken him from a functional arthritic knee, to something that he is struggling to cope with on a daily basis. It is affecting his quality of life. He is struggling to sleep. He cannot conceivably return to pre-injury duties.
I suggested he consider having a right total knee replacement…We will need to wait until at least 6 months after the injection…”
In his next report dated 3 February 2020 Dr Gomes said:
“He went on to have a right knee arthroscopy, partial meniscectomies and chondroplasty on 8 August 2019.
The lateral meniscal tear was noted to be quite extensive, as was the medial meniscal tear. Full thickness cartilage damage was noted in the medial compartment…
The current level of pain is affecting his quality of life, and he is not nearly functional enough to return to pre-injury duties in the foreseeable future.
The significant meniscal tears have taken him from a functional arthritic right knee to a knee that he struggles with on a daily basis…
I have provisionally booked him for a [TKR] on 9 April 2020…
All other treatment modalities have been tried without meaningful benefit…”
On 6 August 2020 Dr Gomes said:
“Paul was working in construction for Cessnock City Council, as a team leader. The work he performed sometimes required strenuous physical activity.
Paul reports that the injury was sustained with a fall at work. It led to anteromedial knee pain and an intermittent catching sensation, which did not resolve with non-operative treatment.
An MRI on June 6 2019 revealed fairly advanced medial tibiofemoral osteoarthritis.
There was a significant medial meniscal tear. The lateral compartment was in fairly good order, except for a lateral meniscal tear.
Paul reported that before the injury he had long-standing issues with the right knee but that he remained quite functional.
After the injury, he developed new mechanical symptoms and a catching pain in the knee, which did not settle. I recommended a right knee arthroscopy, partial meniscectomies and chondroplasty, which was performed 4 months after the injury, on August 8, 2019.
Paul had a reasonable initial response to the surgery, which deteriorated over time. Physiotherapy and injections did not help his cause.
On December 6, 2019, I commented that the work associated injury to the right knee, had taken his knee from a functional arthritic knee, to something that he is struggling to cope with on a daily basis. It is affecting his quality of life and interfering with his sleep. I recommended he consider having a right total knee replacement...
I have outlined the sequence of events after the work associated right knee injury. When a meniscal tear is sustained, the hoop function of the meniscus this is compromised, As a consequence, this increases the load through the arthritic compartments of the joint. This often results in an increase in pain and functional disability.
Paul describes some minor discomfort within the right knee prior to his work injury…he remained quite functional and able to do all aspects of his job.
It is a common scenario, where a functional arthritic knee deteriorates, after an injury. This often relates to loss of meniscal function and hence increased loads through a degenerate compartment.
In my opinion, the work associated injury, has led to the deterioration in the knee function…
I believe that the injury sustained on 9 April 2019 has led to the need for the right (TKR). It has led a previously functional arthritic knee to de-compensate into something that is not even close to functional.
The heavy physical work, has likely contributed to the degeneration of the right knee over the years.
The injuries sustained at work over the course of his employment, have contributed to and accelerated the degenerative process within the right knee.
Paul Job has right knee osteoarthritis, the function of which has been adversely affected by medial and lateral meniscal tears. This has lead to increase loads through the degenerate compartments and led a functional arthritic knee, to become a dysfunctional arthritic knee.
Paul is in desperate need of a right total knee replacement. He would require 6 months to recover from this…”
In a report dated 21 July 2021 Dr Gomes set out the costs of the proposed TKR.
Dr Hopcroft prepared a report dated 17 September 2021. He said:
“During the course of his work he has suffered many injuries to both knees, and in fact as a result of accumulated work-related injuries to his left knee he underwent a left knee arthroscopy procedure on 23 December 2011, followed by a left knee arthroplasty procedure on 12 December 2013 by the Orthopaedic Specialist, Dr Abe Isaacs. Those matters were endorsed in costs by the insurer.
The patient said he had also suffered many injuries to his right knee throughout the course of but his work. on each He occasion, suffered he an was injury to his right knee on 05 March 2003 and on 25 January 2005, reviewed by an Orthopaedic Specialist and managed to return to work in full duties without the requirement of any surgical intervention.
He clearly remembers slipping and falling into a trench at the age of 40 when he wrenched his right knee severely, and never actually recovered with conservative management, always having ongoing and intermittent pain in his right knee joint thereafter.
Then, on Friday 09 April 2019 he was undertaking work in the Aberdare Lawn Cemetery that afternoon, backfilling a grave. He that said it was the requirement of workers to lay down ground protection boards…he said the boards would often buckle, and on this occasion he tripped with his right foot on the corner of a buckled board and fell heavily on the front of his right knee. That saw him develop significant pain and swelling of the knee joint, up to that time, having often had episodes of low-grade pain with exacerbations in giving way and swelling which would often last a week.
On this occasion however he continued to have significant problems and was unable to continue to work after the injury…
Dr Gomes organised MRI scan of his right knee for him to undergo on 6 June 2019. That investigation confirmed significant established arthritic changes in his knee joint with full thickness articular cartilage with acute changes of subchondral loss and oedema, and a complex tear of the posterior horn of the medial meniscal cartilage. There was also some damage to the anterior horn of the lateral meniscus. The lateral compartment had remained relatively undamaged…
He has been reviewed by Dr Gomes since the arthroscopy, and underwent a hydrocortisone injection into his right knee joint which gave him no sustained improvement in his overall symptoms…
At further reviews Dr Gomes advised in a letter dated 8 August 2020 that the patient requires total knee arthroplasty surgery following his last injury. There was no suggestion that he would need right total knee joint replacement surgery prior to the incident of 9 April 2019.
However, following reviews by Dr Richard Powell…on 8 July 2019 it was Dr Powell's opinion that the patient's problem is entirely degenerative and unrelated to his work-related incidents. Dr Powell, even in his supplementary report of 30 January 2020, while mentioning that the patient had undergone left total knee joint replacement surgery in the past, failed to note that that was a workers' compensable injury with costs endorsed by the workers' compensation insurer. (That surely is confirmation that the patient's left knee problems, were due to the accumulated treated by left total knee arthroplasty, effects of injuries suffered during the course of his work and recognised by the insurer.)
He continues to have ongoing pain and a tendency of giving way of his right knee joint, with swelling and disruption of his sleep pattern…
This patient suffered a significant injury to his right knee joint in the work-related activities of 9 April 2019, which tipped the balance against his ever avoiding right total knee arthroplasty. While he accumulated post-traumatic changes in his right knee joint in time (not degenerative changes occurring spontaneously) in the many years he has worked for [the respondent] there were never plans for him to proceed to right total knee arthroplasty, the severe injury of 9 April 2019 rendering it necessary for him, if he was to go forward and recover from his pain and right knee symptoms, to undergo right total knee arthroplasty.
I believe therefore that the surgery offered by his treating Orthopaedic Specialist, Dr Bruno Gomes, is reasonably necessary and a direct result of the particular injury suffered…on 9 April 2019, superimposed on the pre-existing and long-standing accumulated post-traumatic changes the patient had in his right knee joint from the various incidents of trauma suffered during the course of his work to the right knee over 39 years of work for the Council…”

In a further report dated 12 January 2022 Dr Hopcroft said:
“There could be no clearer account of the accumulated effects of trauma to his right knee during his protracted work commitment to the Council, and to deny the responsibility to meet the costs of right total knee joint replacement surgery flies in the face of pretty solid historical medical facts.
This patient's injury of 09 April 2019 was simply the straw that ‘broke the camel's back’ and brought to bear the necessity of this patient undergoing right total knee joint replacement surgery, with all other forms of treatment unlikely to be beneficial or successful in alleviating his symptoms.
On page 2 of Dr Powell’s report [6 October 2021] he seems to ignore the significance of lateral meniscectomy surgery on the function of the human knee joint even in the absence of pre-existing work-induced changes, and to suggest that ‘any aggravation of the underlying disease process in the manner described was appropriately treated along the lines outlined’ simply ignores the fact of the detrimental effects to the function of the human knee joint with a compromised lateral meniscus let alone that the trauma that caused that damage could not avoid further aggravating any underlying pathological changes that co-exist in this patient’s knee…”

The respondent’s evidence

In his initial report dated 8 July 2019 Dr Powell said:
“Mr Job is a 66-year-old right hand dominant gentleman employed by Cessnock City Council as a team leader in the parks and gardens division. He sustained an injury to his right knee in a fall onto the anterior aspect of the knee on 9 April 2019. This has resulted in aggravation of well- established pre-existing medial compartment degenerative change.
His treating specialist, Dr Gomes, has recommended an arthroscopy…
The mechanism of injury described is sufficient to have resulted in the claimed injury.
Mr Job's treating specialist, Dr Gomes, has recommended an arthroscopy. The role of arthroscopy in the management of an osteoarthritic knee has become a little controversial in recent times with the literature fairly conclusively indicating that there is little long term benefit to be gained from the procedure. On the flip side, Mr Job indicated he was completely asymptomatic prior to this workplace incident despite the presence of significant degenerative pathology and since the workplace incident he has developed significant rnechanical symptoms that include catching, locking, and instability. This suggests the presence of more acute pathology possibly representing extension of the degenerative meniscal rnedial tear, chondral flaps or loose bodies. Under those circumstances, arthroscopy would be reasonable to address any such pathology though clearly have no impact on the long term prognosis for his degenerative knee condition.
On balance, I believe the treatment proposed by Dr Gomes would be considered reasonable and necessary for the management of Mr Job's work related injury.”
In his next report dated 30 January 2020 Dr Powell said:
“Following my assessment it was noted that Mr Job underwent the proposed right knee arthroscopy though unfortunately this provided only short term symptomatic improvement. He underwent further physiotherapy, and received an injection of local anaesthetic and corticosteroid though without benefit.
Consequently, Dr Gomes has now recommended a total knee replacement.
I note Mr Job has undergone a similar procedure on the contralateral side several years earlier for the management of a primary osteoarthritic condition…
It is probable that Mr Job would have required a [TKR] at some stage irrespective of the effects of [the] injury…
The surgery proposed by Dr Gomes is entirely appropriate for the management of the pre-existing degenerative disease process, though I do not believe it is required on the basis of the work-place injury…This represented a fall onto the anterior aspect of the knee. Although sufficient to have caused temporary aggravation of the pre-existing degenerative disease process it is unlikely to have caused progression of the underlying degenerative disease process which was well advanced at the time of the initial incident.
Mr Job's current symptoms and the need for surgery relate to the pre-existing degenerative disease process…”
In a further report dated 6 October 2021, Dr Powell repeated many of his earlier comments. He concluded:
“I formed the impression that the workplace incident that occurred on 9 April 2019 was sufficient to have caused aggravation of the pre-existing underlying degenerative disease process. This led to the development of significant mechanical symptoms which had not been a feature of the condition previously. I considered it was reasonable to proceed with surgery in the form of arthroscopy, notwithstanding Mr Job’s age and the presence of underlying degeneration…
Unfortunately the surgery did not result in sustained symptomatic improvement…
In my opinion, it would be reasonable to conclude, based on all of this information, that any aggravation of the underlying degenerative disease process that occurred in the manner described was appropriately treated along the lines outlined above. Any aggravation relating to the specific incident would have settled long ago. The ongoing symptoms and functional limitations in the right knee are more likely to relate to the significant pre-existing tricompartmental osteoarthritis, and any aggravation relating to the work related injury would have settled several months after the completion of treatment.
The tears identified at arthroscopy were most likely degenerative in nature and part of the overall disease process involving the right knee. The total knee replacement was required to address the tricompartmental osteoarthritis, which was already well established at the time of the subject incident.
Given the time interval, the meniscal tears and their treatment are unlikely to have contributed in any substantive fashion to the subsequent need for total knee replacement, which would have likely to have been required irrespective of the workplace incident, noting Mr Job had already undergone a similar procedure on the contralateral side several years earlier for the same pathology.”
In his final report dated 17 August 2022 Dr Powell said:
“I have reviewed the additional information provided including the reports of Dr Alan Hopcroft (General Surgeon) dated 17 September 2021 and 12 January 2022…
It is my understanding that the current discussion in relation to the management of the right knee relates to the effects of a specific workplace incident occurring on 9 April 2019 and not the nature and conditions of Mr Job’s employment, which appears to have been the case in relation to the left knee…
It is interesting for use of the phrase, ‘tip the balance’, as my understanding of the WorkCover Guides that in the context of a degenerative disease process it has to be shown that the workplace incident represented the ‘main contributing factor’ and not a factor that ‘tips the balance’.
It is quite clear in this case that Mr Job was suffering from a well established pre-existing degenerative disease process involving the right knee. The workplace incident on 9 April 2019 was not such a ‘significant injury’ that he was unable to continue working on the day. The mechanism of injury represented a direct blow to the anterior aspect of the knee. Although this may aggravate some underlying patellofemoral compartment osteoarthritis, it does not cause meniscal tears and is unlikely to cause any significant aggravation of medial compartment degenerative pathology.
Therefore, it is accepted that Mr Job did suffering an aggravating incident, the available evidence indicates that this was at the minor end of the spectrum and was unlikely to alter the natural history of the underlying degenerative process involving the medial and patellofemoral compartments which was for continued deterioration over time.
Dr Hopcroft made subsequent reference to the workplace incident of 9 April 2019 being ’the straw that broke the camel’s back’, though by that description would hardly be considered a ‘significant injury’ or a ‘major contributing factor’…
In the first instance it is unlikely that the mechanism of injury described caused the lateral meniscal tear and it is conceivable that altering the biomechanics of the joint through a partial lateral meniscectomy will result in disabling arthritis necessitating total knee replacement within a period of months.
Thus, in summary, Dr Hopcroft’s comments do not lead me to alter my opinion in any way. I maintain my opinion that the workplace incident that occurred on 9 April 2019 does not represent the main contributing factor in the permanent aggravation of the well established pre-existing degenerative disease process in the right knee.
Although total knee replacement is totally appropriate for the management of end-stage osteoarthritis, in this case it was not required on the basis of the workplace incident but rather required to address the longstanding pre-existing multicompartment degenerative disease process.
Incident reports were provided dated 23 July 2002, referring to a twisting injury of the right knee and 5 March 2003, referring to Mr Job stepping into a post-hole. These incidents did not form part of the history provided to me by Mr Job. I have not had the opportunity to take a directed history addressing the specifics of injury, any treatment received, investigations performed or details of recovery. As such, it is difficult to comment further, though with the limited information available it is unlikely that either of these two incidents would result in the subsequent development of advanced multicompartment osteoarthritis…”
The respondent also relied upon various clinical records and radiological material which essentially confirmed the presence of degenerative pathology.

FINDINGS AND REASONS

As indicated earlier, the thrust of the respondent’s submissions was that the incident on 9 April 2019 was “minor” and could not be regarded as a main contributing factor to the requirement for TKR.
This was of course in line with the opinion of Dr Powell.
The respondent also submitted that the radiological evidence and clinical history showed evidence of prior knee symptoms such that the applicant was not in fact asymptomatic at the time of his injury.
Dr Powell also confirmed the significance of the underlying pathology.
It was also emphasised the applicant’s case relied upon a frank injury, not a “nature and conditions” claim such that the injury, a fall on the right knee, could only be regarded as a temporary aggravation unlikely to cause any progression of the underlying significant pathology.
The respondent also submitted that the phrase used by Dr Hopcroft that the injury “tipped the balance” demonstrated that the inevitability of TKR surgery was due to the underlying condition, consistent with the opinion of Dr Powell.
In short, the minor injury on 9 April 2019 represented a short-term aggravation and knee surgery was required as a result of that underlying condition.
The respondent’s submissions clearly focus on the opinion of Dr Powell which is understandable.
However, much of the respondent’s submissions ignore the factual situation as outlined by Mr Job in his statements, and the opinions of Dr Gomes and Dr Hopcroft.
Mr Job set out details of the various injuries to his right knee that he sustained at work with the respondent. However, he regularly resumed work after these incidents despite the acknowledged evidence of degenerative pathology.
As regards the injury the subject of this claim, he said:
“This injury occurred at Aberdeen cemetery when I tripped on a ground protection board and fell heavily (my emphasis) on my right knee. The injury occurred late in the afternoon, and I do not recall ceasing work at the time, As a result of this injury, I was off work from 8 August 2019 to 10 October 2019. I returned to work on 11 October 2019 on restricted duties which I stayed on until I retired on 4 December 2021 at 68 years of age.
During the period between the date of the injury of 9 April 2019 to 7 August 2019 I was having difficulty at work with my knee. I was employed as a supervisor. I was able to avoid undertaking heavy work and/or avoiding work that would place strain on my knee…”
In June 2019, not long after the injury, Dr Gomes reported: “He has suffered anteromedial knee discomfort since [the injury] and an intermittent catching sensation, which has not resolved.”
Dr Gomes also said: “Paul reported that before the injury he had long-standing issues with the right knee but that he remained quite functional. After the injury, he developed new mechanical symptoms and a catching pain in the knee, which did not settle…”
In short, as counsel for the applicant put it, up to the time of the injury Mr Job had a functional knee that then ceased to function. Although he remained at work for a time, he struggled with ongoing symptoms as reported by Dr Gomes in June 2019 referred to above.
I note also that Mr Job, as team leader, was able to manage his symptoms to a degree by avoiding the heavier aspects of his job, such that any emphasis on his ability to remain at work is unfounded. He also only performed lighter duties after the arthroscopy.
This it was submitted was an indication that the injury was indeed significant, contrary to the opinion of Dr Powell.
I agree.
I generally find the opinions of treating specialists persuasive, and particularly so in this case because of the long involvement Dr Gomes has had with Mr Job over some years now.
It is also of relevance that Dr Gomes explained clearly how the failure of the arthroscopic procedure led to his opinion that TKR was required. As he said:
“The work associated injury, has taken him from a functional arthritic knee, to something that he is struggling to cope with on a daily basis. It is affecting his quality of life. He is struggling to sleep. He cannot conceivably return to pre-injury duties.
I suggested he consider having a right total knee replacement…”
This to me is common sense, as counsel for the applicant pointed out.
There has been considerable criticism of Dr Hopcroft’s opinion by the respondent.
I accept that much of his opinion did indeed reflect a “nature and conditions” type injury, given his references to injuries to both knees over the years.
However, his conclusion I also find persuasive. He said:
“This patient's injury of 9 April 2019 was simply the straw that ‘broke the camel's back’ and brought to bear the necessity of this patient undergoing right total knee joint replacement surgery, with all other forms of treatment unlikely to be beneficial or successful in alleviating his symptoms.”
Dr Hopcroft’s use of the words “the straw that broke the camel's back” is not in my view worthy of criticism. Of course it is not the term used in the Guidelines but a common sense expression of his opinion, just like his use of the words “tipped the balance.”
I have difficulty accepting the opinion of Dr Powell as regards the reason for the acknowledged TKR surgery. He initially said:
“Mr Job indicated he was completely asymptomatic prior to this workplace incident despite the presence of significant degenerative pathology and since the workplace incident he has developed significant rnechanical symptoms that include catching, locking, and instability. This suggests the presence of more acute pathology possibly representing extension of the degenerative meniscal rnedial tear, (my emphasis) chondral flaps or loose bodies. Under those circumstances, arthroscopy would be reasonable to address any such pathology though clearly have no impact on the long term prognosis for his degenerative knee condition.”
He also said: “The mechanism of injury described is sufficient to have resulted in the claimed injury.”
These comments in my view do not sit well with his ultimate conclusion that the injury was only minor, and a temporary aggravation of the underlying condition.
The respondent accepts that TKR surgery is an appropriate form of treatment such that it is not necessary for me to refer to the various authorities relating to the question of ‘reasonableness.’
I do however make some comment on ‘expert opinion.’ I do not challenge the expertise of Dr Powell, however, as Beazley JA (as she then was) said in Hancock v East Coast Timber Products Pty Limited, 2011 NSWCA 11:

“what was required for satisfactory compliance with the principles governing expert evidence was for [Dr Summersell’s] reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, (my emphasis) and information from x-rays and other tests.”

In my view, Dr Powell failed to have sufficient regard to the whole of the evidence, particularly that of Mr Job.
For these reasons, I find that the TKR surgery proposed by Dr Gomes is reasonably necessary as a result of the injury pleaded.

[2022] NSWPIC 536

28 September 2022