Konemann v Southside Staffing Solutions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Konemann v Southside Staffing Solutions Pty Ltd [2025] NSWPIC 228
APPLICANT:	Yvonne Konemann
RESPONDENT:	Southside Staffing Solutions Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	27 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injuries to applicant’s bilateral wrists, bilateral knees, and left shoulder sustained in a fall; accepted consequential conditions of the right knee and the lumbar spine; applicant claimed compensation for cost of various past and future treatment; whether the applicant sustained a consequential condition of the right hip; whether the various claimed treatment was reasonably necessary as a result of the accepted injuries; Held – the applicant sustained a consequential condition of her right hip as a result of the accepted injuries; the various claimed past and future treatment were reasonably necessary as a result of the accepted injuries.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition of her right hip, as a result of the accepted injuries sustained on 21 February 2020. 2. The claimed right hip arthroscopy treatment to repair the labral tear proposed by Dr Peter Walker, orthopaedic surgeon, is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act). 3. The claimed past and future chiropractic treatment is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act. 4. The claimed past and future CBD oil is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act. 5. The pain management program recommended by Dr Wallace, pain specialist, is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act. 6. The lateral branch block recommended by Dr Wallace in his report dated 8 December 2021 is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act. 7. The claimed past pharmaceutical expenses and other treatment costs is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act. The Commission orders: 8. In accordance with s 60 of the 1987 Act, the respondent is to pay the past costs of and incidental to: (a) chiropractic care from Clarence Valley Chiropractic and Balgonie Chiropractic Radiology scans and reports from I-MED Radiology and Castlereagh Imaging; (b) pharmaceutical medication from Maclean Discount Pharmacy and Cincotta Discount Pharmacy; (c) orthopaedic treatment from Specialty orthopaedics and Dr Peter Walker; (d) treatment from Proactive Spine & Sports Medicine; (e) general medical treatment from Dr Holland-Keen, and (f) transportation costs involved with the attendance at the above appointments. 9. In accordance with s 60 of the 1987 Act, the respondent to pay the future costs of and incidental to: (a) right hip arthroscopy treatment to repair the labral tear proposed by Dr Peter Walker, orthopaedic surgeon; (b) lateral branch block recommended by Dr Wallace in his report dated 8 December 2021; (c) pain management program recommended by Dr Wallace, pain specialist; (d) CBD drops and CBD oil prescribed by Dr Lance Holland-Keen, and (e) chiropractic treatment. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Yvonne Konemann (the applicant) was employed by Southside Staffing Solutions Pty Ltd (the respondent) on 21 February 2020 when she slipped on high gloss tiles at the workplace and fell, sustaining injuries to her left and right wrists, left and right knees, left shoulder, consequential condition of the right knee and consequential condition of the lumbar spine (together referred to as “the accepted injuries”).
The respondent’s insurer (the insurer) accepted liability for the accepted injuries, with a date of injury of 21 February 2020.
The applicant has now claimed:
(a) a consequential condition of the right hip (the right hip condition), consequential to the accepted injuries, and
(b) various medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), including costs of and incidental to:
(i)right hip arthroscopy proposed by Dr Walker in a report dated
10 October 2023 (the right hip arthroscopy), and
(ii)CBD oil, chiropractic treatment, lateral branch block and pain management program.
The insurer disputed liability for the right hip condition and the medical expenses on the grounds that: it disputed that the applicant sustained the right hip condition as a result of the accepted injuries and, further, it disputed that the right hip arthroscopy and the other claimed medical expenses was reasonably necessary as a result of a work-related injury as required by s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated the present proceedings in the Personal Injury Commission (Commission) by Application to Resolve a Dispute (ARD) lodged on 16 December 2024.
The respondent lodged a Reply to ARD (Reply) on 10 January 2025.
The ARD was subsequently amended pursuant to directions made by Principal Member Bamber on 17 February 2025 and Member Garner on 26 March 2025.
The applicant now claims the following medical expenses pursuant to s 60 of the 1987 Act:
(a) Past expenses:
(i)chiropractic care from Clarence Valley Chiropractic and Balgonie Chiropractic Radiology scans and reports from I-MED Radiology and Castlereagh Imaging;
(ii)pharmaceutical medication from Maclean Discount Pharmacy and Cincotta Discount Pharmacy;
(iii)orthopaedic treatment from Specialty orthopaedics and Dr Peter Walker;
(iv)treatment from Proactive Spine & Sports Medicine;
(v)general medical treatment from Dr Holland-Keen, and
(vi)transportation costs involved with the attendance at the above appointments.
(b) Future expenses:
(i)CBD drops 30mL, Dr Lance Holland-Keen ($175.99 per month);
(ii)CBD oil 50mL, Dr Lance Holland-Keen ($194.99 per month);
(iii)chiropractic treatment, Bounce back ($499.80 per month);
(iv)hip Arthroscopy, Sydney Anaesthetics ($2,500);
(v)lateral branch block, Dr Wallace ($3,500);
(vi)surgery costs, Macquarie University Hospital ($4,466.50);
(vii)hip arthroscopy, Dr Peter Walker ($6,246), and
(viii)pain management program, Dr Wallace ($9,800).
At a conciliation/arbitration hearing (the hearing), conducted by MS Teams on
26 March 2025, Mr Bradley Williams, counsel, appeared for the applicant, instructed by Melinda Griffiths Lawyers. Ms Katharine Young, counsel, appeared for the respondent, instructed by Bartier Perry Lawyers.
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.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remain in dispute:
(a) whether the applicant suffers a right hip condition consequential upon altered gait from injuries sustained on 21 February 2020, noting that the insurer has not disputed “injury” to the lower back and knees;
(b) whether the proposed right hip arthroscopy treatment is reasonably necessary treatment as a result of the injury, pursuant to s 60 of the 1987 Act, and
(c) whether the CBD oil, chiropractic treatment, lateral branch block, pain management program and other claimed expenses are reasonably necessary as a result of the injury, pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply to Application to Resolve a Dispute and attached documents;
(c)    Application to Admit Late documents dated and lodged by the applicant on
25 March 2025, with the exception of the following documents that are not admitted into evidence pursuant to directions made on 26 March 2025:
(i)transfer receipt of Jims Cleaning Services dated 26 January 2025;
(ii)Quote of Beds N Dreams dated 12 February 2025;
(iii)Therapeutic Exercise N Nutrition brief assessment letter, and
(iv)Therapeutic Exercise N Nutrition product request.

Oral evidence

No application for leave to cross-examine was made and no oral evidence was given.

SUBMISSIONS

Counsel’s submissions were made in writing pursuant to directions made on 26 March 2025 and comprised:
(a)    applicant’s written submissions dated 8 April 2025;
(b)    applicant’s written submissions dated 14 April 2025, and
(c)    respondent’s written submissions dated 22 April 2025.
The respondent’s counsel noted inconsistencies with the imaging and submitted that there is inadequate evidence to discharge the applicant’s onus of proof to satisfy the Commission that the applicant sustained the right hip condition consequential upon the accepted injuries. The respondent’s counsel submitted that the opinion of Dr Robin Diebold, orthopaedic surgeon, ought to be preferred and accepted. On that basis, the respondent’s counsel submitted that the Commission should not be satisfied that the applicant sustained the right hip condition consequential upon the accepted injuries nor that the right hip arthroscopy and the other claimed medical expenses are reasonably necessary as a result of a work-related injury.
The applicant’s counsel referred to various treating medical evidence and submitted that the evidence of Dr Peter Walker, hip and knee orthopaedic surgeon, should be preferred and accepted. The applicant’s counsel submitted that the weight of the evidence clearly demonstrates that the applicant did sustain the right hip condition consequential upon the accepted injuries and, further, that the right hip arthroscopy and the other claimed medical expenses are reasonably necessary as a result of a work-related injury.

DID THE APPLICANT SUSTAIN A CONSEQUENTIAL CONDITION OF HER RIGHT HIP?

The law

It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act nor that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah Pty Ltd,[1] Deputy President Roche stated at [45]-[46]:[2]
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[1] [2009] NSWWCCPD 134.
[2] See also Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, at [61].
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Deputy President Roche stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.
The applicable legal test of causation was set out by the Court of Appeal in Kooragang,[4] where Kirby P (as his Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[5]
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[5] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[6] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[6] [2016] HCA 43, at [42].
The Court of Appeal in Nguyen v Cosmopolitan Homes[7] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[7] [2008] NSWC 246.
The applicant bears the onus of proof.

Applicant’s evidence

The applicant provided evidence by way of a written statement which detailed the history of the accepted injuries and the development of right hip symptoms and restrictions. The applicant stated that she has various ongoing symptoms including right hip pain, which she attributes to a change in her gait as a result of the fall at work.

Treating medical evidence

In a report dated 2 November 2020, Dr Mark Jones, sports and exercise physician, injury management consultant, reported that the applicant experienced continuing right wrist and left knee symptoms, but he did not record any right hip symptoms.
On 20 January 2021, the applicant’s general practitioner, Dr Aung San, referred the applicant to Dr Gregory Stackpool, orthopaedic surgeon, for opinion and management of pain in her right hip after a fall on 21 February 2020. Dr Stackpool stated that an MRI of the right hip on 9 December 2020 showed partial-thickness tear of the deep fibres of gluteus medius insertion.
By report dated 16 February 2021, Dr Stackpool, treating orthopaedic surgeon, stated that the applicant reported that she had developed some right knee and hip pain following her fall at work without great improvement of symptoms following a long course of physiotherapy.
Dr Stackpool reported that on examination, the applicant walked with a limp and had a soft brace around the right knee, she had a positive Trendelenberg test, the right hip was mobile but the applicant was tender around the posterior aspect of the greater trochanter.
Dr Stackpool stated that findings of an MRI of the applicant’s right hip revealed a small deep partial tear to the gluteus medius with some surrounding peritendinous oedema over the gluteus minimus, there was no effusion nor a labral tear and the chondral surfaces were intact. In summary, Dr Stackpool stated that the applicant had ongoing symptoms affecting the right lower limb. He recommended that the applicant undergo a corticosteroid injection into the right greater trochanteric region and that she continue to undergo physiotherapy to regain her gait.
By report dated 28 April 2021, Dr Stackpool reported that the applicant had ongoing symptoms associated with her lower back, right hip and right knee. In respect of her right hip, Dr Stackpool recommended that the applicant continue non-operative treatment in the form of strengthening exercises, physiotherapy and potentially a further injection.
By report dated 7 July 2021, Renee Hogden, physiotherapist, reported that she had been working with the applicant since December 2020 regarding her right-sided hip pain and knee pain after the fall at work. Ms Hogden stated that since an injection to treat her hip pain, the applicant had seen some improvements in strength and slight progress of her exercise rehabilitation. Ms Hogden stated that:
“However due to her right meniscus injury, she continues to present with an altered gait pattern, she continues to have poor heel strike and increased knee and hip flexion throughout her stance phase.
The prolonged altered gait mechanics have subsequently changed her muscle tone of her hips and lower back, leading to ongoing reports of hip and lower back symptoms with certain aggravating activities and well as intermittent sleep disturbance.
Therefore, we have continually been addressing her right hip and lower back in our consultations alongside her right knee rehabilitation...”
Ms Hogden made a similar report on 14 September 2021.
By report dated 27 September 2021, Dr Jun Nagamori, sports knee surgeon, reported that the applicant was still walking with quite a marked flexed knee gait and she stood with an abnormal knee posture which was likely to be contributing to her anterior knee discomfort.

By report dated 20 October 2021, Dr Laurent Wallace, pain specialist, stated that the applicant reported severe radiating pain into the anterior thigh from the lower back and associated weakness in her right hip flexes. Dr Wallace noted that an MRI right hip showed partial thickness tear of gluteus medius insertion with some surrounding edema including at the gluteus minimus. Dr Wallace stated that on examination, there was some tenderness over the right sacroililac joing and right anterior hip pain was illicited with right thigh flexion. Dr Wallace diagnosed right hip pain and potentially sacroiliac joint pain. Dr Wallace requested approval for various treatment including medication, right sacroiliac joint injection and lateral branch blocks, ongoing physical therapy and noted that future options may include a pain management program.
By report dated 8 December 2021, Dr Wallace, pain specialist, reported that the applicant had a good response to SIJ block and diagnostic lateral branch blocks although she continued to experience right hip pain. Dr Wallace stated that he expected the applicant’s right hip pain to return.
By report dated 17 January 2022, Dr Wallace, pain specialist, reported that the applicant’s response to diagnostic lateral branch blocks on 6 December 2021 suggested that her right hip pain was coming from the sacroiliac joint. Dr Wallace stated that the applicant’s current right hip presentation was consistent with chronic pain after a fall. Regarding the right hip specifically, Dr Wallace stated that an MRI scan showed a partial thickness tear of gluteus medius insertion, with some surrounding oedema, including at the gluteus minimus.
Dr Wallace stated that he also believed that part of the right hip pain was coming from the right sacroiliac joint. Dr Wallace stated that he did not think that there were any other factors contributing to the applicant’s right hip pain. Dr Wallace recommended radiofrequency ablation to give the applicant long term improvement to her pain. Dr Wallace stated that appropriate treatment for the applicant’s chronic pain required a multidisciplinary approach and he recommended a multidisciplinary interventional pain program.
In a report dated 18 January 2022, Dr Balsham Darwish, neurosurgeon, stated that the applicant continued to complain of limping and weakness in the right leg and that when she put full weight on her right leg, she tended to collapse.
In a report dated 19 January 2022, Dr Laurent Wallace recommended various treatments for the applicant’s ongoing hip and other pain.
In a report dated 11 February 2022, Dr Nick Hartnell, surgeon, reported that the applicant was having troubles with global right hip pain, worse with prolonged sitting. Dr Hartnell stated that the applicant has an abnormal gait which she attributed to her knee, spine and hip.
Dr Hartnell stated that from a clinical point of view, the applicant has tendinitis and bursitis around the right hip joint. Dr Hartnell stated that MRI did not report a labral tear but he thought the applicant probably did have a small labral tear, which was undisplaced, and he did not recommend surgery at this point. Dr Hartnell recommended further investigation of the applicant’s right hip issues.
In reports dated 23 February 2022, 9 March 2022, and 30 March 2022, Dr Wallace, pain specialist, recommended various treatments including referral to an upgraded pain management program.
In a report dated 29 April 2023, Dr Lance Holland-Keen reported that:
“1.     Her workplace injury was a fall in 2020 with documented injuries to right knee and her wrists. I first saw her in 2022 - referred from the pain specialist Dr L Wallace as her chronic pain was NOT responding to standard medical therapy- and medical cannabis was commenced (with some effect).
Given the mechanism of the fall and the chronicity of her reduced mobility and pain I WOULD assert that pain in the shoulder [sic], hips and back, arise from her initial injury - in that it is highly unlikely she would be suffering pain in those areas were it not for her work related claim.
2.      Therefore I am of the opinion that ALL her claimed issues are a direct result of the frank claim and ARE work related.
3.      As has been documented at length in previous notes by previous doctors, the salient issues being upper limb AND lower limb injuries causing chronic pain - and undoubtedly, secondary psychological issues which have then deepened the severity of her pain and loss of function.
4.      There is no evidence of a pre existing condition based on all the reports I have read.
5.      As above, and as previously documented, Yvonne's initial injury - knee and wrists – has become chronic and had a knock on effect due to loss of function from ongoing pain – causing dysfunction now in other areas of both upper and lower limbs and her back...”
In a report dated 26 July 2023, Dr Louis Shidiak, hip and knee surgeon, reported that in November 2020, approximately nine months after the accepted injuries, the applicant developed right hip pain and difficulty weight bearing which has progressed over the last three years. Dr Shidiak noted that the applicant had been commenced on Cannabis oil.
Dr Shidiak stated that two MRIs had confirmed no evidence of labral tearing and no effusion but the most recent MRI in August 2022 suggested some mild adductor tendinopathy.
Dr Shidiak stated that there is “no indication for any hip arthroscopy and in her age group even if there was a labral tear not identified on MRI the surgery would be in the form of a labral debridement which would only accelerate her arthritic changes”.
In a report dated 21 September 2023, Dr Peter Walker, hip and knee orthopaedic surgeon, stated that:
“[The applicant] slipped on a floor at work, I think it was two years ago… She fell and landed on her knees and her wrists. She had a lot of pain. The wrist was the worst initially and she subsequently had surgery on her wrist. She has had an arthroscopy on her right knee.
Her pain now is mainly around the right hip which she said she had straight away but because the other things were causing more of a problem this was not concentrated on. The hip pain is posterior, posterolateral and in the groin. It is progressively getting worse. It is worse with activity. She gets a constant click which is irregular and she cannot reproduce at will. She cannot exercise. She struggles to walk at all. She has had lots of treatment with chiropractors and physiotherapy.
Investigations She did have some MRIs of her hip in 2020 and 2022. The one in 2020 said she had a partial gluteus medius tear. The one in 2022 did not even mention this which is very unusual. The one in 2022 did mention she has some chondromalacia of her hip. She has had two hip injections which took away all of her pain for a short period of time.
On examination clinically she was tender posterolaterally. She had no groin tenderness. Her hip was not particularly irritable. On flexion and extension, she did say she felt a click but I could not feel one. I did observe her walking and she basically cannot put very much weight on this hip at all.
Plan I have sent her for a new MRI scan at a place that does good quality hip MRIs and will make a recommendation once I have seen this.”
In a report dated 10 October 2023, Dr Peter Walker, hip and knee orthopaedic surgeon, reported that:
“… She has had her new MRI scan which does confirm a labral tear which they report as chronic meaning it has been there for some time. I suspect it has been there the whole time and was missed on the previous MRI scans. She has some minor chondral changes superiorly but no unstable chondral flap. This can be another reason for pain depending on its severity. She has some mild insertional gluteus medius tendinosis but no frank tear.
I spoke to Yvonne about the pros and cons of an arthroscopy. At arthroscopy I can repair her labrum but I cannot do anything about the chondral damage. She is in such a bad way and so incapacitated that I think it is reasonable to give this a chance. I cannot guarantee that I will make her better because her symptoms are quite marked. She may also at some stage require some PRP injections into her gluteus medius tendon.”
In a report dated 19 March 2024, Dr Lance Holland-Keen reported that the applicant was experiencing lateral hip pain and knee pain and stated that “As expected she is getting some back pain as a result of antalgic, asymmetrical gait”.
In a report dated 2 April 2024, Matt Cranney, sports and exercise physiologist reported that “On examination Yvonne walks with an antalgic gait pattern related to her right hip”.
In a report dated 22 May 2024, Dr Holland-Keen reported that the applicant was suffering significant chronic pain issues arising from her injury and would likely require ongoing treatment for more than six months. Dr Holland-Keen stated that in addition to physiotherapy, the applicant was being treated with CBD/THC oil which was “the only effective and tolerable medications found after many medications have already been tried”. Dr Holland-Keen stated that the applicant’s hip pain was a major complaint of the applicant and “which almost certainly would NOT exist were it not for her compensable injury”.

Imaging

The medical evidence includes reports of the following radiology:
(a)    an MRI of the right hip on 9 December 2020 reported: there was no labral tear; there was a partial-thickness tear of the deep fibres of the gluteus medius insertion measuring 5mm anteroposteriorly with peritendinous oedema of the gluteus minimus and medius in keeping with tendinosis; there was a trace of fluid in the trochanteric bursa suggestive of bursitis;
(b)    an MRI of the right hip on 16 August 2022 reported: there was no acetabular or labral tear identified; no bursitis; normal adductor tendinopathy and some chondromalacia, and
(c)    an MRI of the right hip on 23 September 2023 reported: a chronic tear at the base of the superolateral and anterosuperior acetabular labrum, with minor basal chondral delamination at the acetabular rim supero-laterally and antero-superiorly; no clearly unstable chondral flap or subchondral bone marrow oedema; mild reduction in right femoral head neck offset antero-laterally; no hip joint effusion or synovitis; mild to moderate thickening of the subgluteus maximus bursa and anterior juxta-insertional gluteus medius tendinosis, without tear.

Independent medical evidence

Associate Professor Paul Miniter, orthopaedic surgeon, qualified by the applicant

In a report dated 15 December 2021, Associate Professor Miniter recorded a detailed history. Associate Professor Miniter reported that attempting to examine the range of motion of the right hip joint proper caused the applicant significant pain in the groin and he noted that the applicant had some features over the trochanteric region on the right hand side. Associate Professor Miniter was unable to provide a specific current diagnosis in relation to the applicant’s knee, hip, lower back and left wrist.
In a report dated 22 December 2021, Associate Professor Miniter stated that his previous opinion relating to the applicant’s knee, hip, lower back and wrist on the left hand side was related to the fact that there are no imaging findings to suggest that there has been an acute significant injury.

Dr Chandra Dave, orthopaedic surgeon, qualified by the applicant

In a report dated 24 August 2022, Dr Chandra Dave, orthopaedic surgeon, recorded a history. Dr Dave diagnosed “multiple joints that were injured during the course of a fall”.
Dr Dave stated that “Due to an abnormal gait, she could have put strain onto her lumbar spine and I believe her hip as well. It is possible that she may have had an injury to the hip that was masquerading as referred pain to the knee and hence the initial diagnosis was not found”.
In a report dated 17 January 2023, Dr Dave stated:
“As has been described in the main report, Yvonne had a fall, injured both her wrist and her knee. As a consequence of the injuries and surgeries, she has been having to favour her other leg and shoulder. Indeed, it was an opinion that a hip injury can sometimes masquerade with knee pain and it would be possible that the hip was injured in the original accident in itself. As such, certainly in regards to the shoulder and hip, I would be of the opinion that they may be causally related to her original accident. As far as the lumbar spine is concerned, her abnormality of gait would have contributed to this. She did not have any symptoms prior to her accident. At present, she is under the management of Laurent Wallace, pain management as well as Lance Keys and has been prescribed pain medication and pain blocks including CBD oil. As far as I am concerned, the usage of such medication would be reasonably necessary if it is deemed so by her pain management consultants. As far as her hip is concerned, this will need further assessment and possible management as also her left shoulder, which I understand has already got a referral. I feel that these would be certainly appropriate investigations. The cost of such treatments including consultations for various areas would be approximately $300 to $400 a consultation.
There may be other ancillary costs of investigation. The duration will be determined by the pathology found, but I would estimate a minimum of about four to six months…”

Dr David Gorman, consultant physician in general medicine, medical oncology, pain medicine specialist, qualified by the respondent

In a report dated 29 May 2024, Dr Gorman recorded that the applicant reported that the applicant had a painful right hip and that she felt that her altered gait has caused some lumbar pain. Dr Gorman recorded that the applicant continues on anti-inflammatory medication with CBD/THC oil. Dr Gorman opined that the medicinal cannabis is not a reasonably necessary treatment. Dr Gorman opined that the medicinal cannabis has not made a significant improvement to the applicant’s pain, noting that she still had widespread pain and he believed that improvements in the applicant’s capacity was related to improvement in her soft tissue injuries over time. Dr Gorman opined that the applicant should continue on intermittent anti-inflammatory medication.
Dr Gorman stated:
“I do not believe that medicinal cannabis reaches the reasonably necessary criteria. She has not had a significant improvement in function due to the medicinal cannabis and continues to have symptoms. She has not returned to work even though she has been on the medicinal cannabis for more than a year.
I understand that a product containing THC has been added and this also would be problematic in that it stops her driving legally.
Overall, I do not believe the prescribed medicinal cannabis meets the reasonably necessary criteria. I note that I am supported in this by the Faculty of Pain Medicine and the International Association for the Study of Pain, both of which do not support the use of medicinal cannabis for chronic pain - I have attached their position statements and a press release…
I do not believe the treatment is reasonably necessary and should not be started. Certainly, if containing THC, it is an addictive compound which will be difficult to stop…
Anti-inflammatories and paracetamol should be the mainstay of pharmacological treatment.”

Dr Robin Diebold, orthopaedic surgeon, qualified by the respondent

In a report dated 27 August 2024, Dr Diebold recorded a detailed history which included the following:
“From approximately November 2020, she complained of pain in the lower back and in the right hip. She attributes this to the limp on the right knee. On 09/12/2020, MRI scan of the right hip reported a small gluteus medius tear only. On 28/04/2021, she was reviewed by hip surgeon Dr Greg Stackpool. He arranged right trochanteric steroid injection on 24/03/2021, repeated later in the 2021, and rehabilitation. There was temporary benefit from the injections. In about 2023, she paid to have a repeat injection, which again gave temporary benefit. On 11 /02/2022, her right hip was reviewed by orthopaedic surgeon Dr Nick Hartnell, who considered that there was no evidence that surgery at the right hip would help.
She has had a recent repeat MRI scan of the right hip. She has recently been reviewed by hip surgeon Dr Peter Walker, who has apparently diagnosed a labral tear of the right hip. He has apparently submitted a request to proceed with arthroscopy of the right hip.”
Dr Diebold stated that the applicant reported a deep-seated bilateral hip pain, worse with weight-bearing, much worse in the right than the left, which the applicant felt throughout the groin, trochanteric area and buttock. Dr Diebold stated that the applicant also reported diffuse right knee pain with weight bearing, and similar but lesser symptoms in the right knee and that the applicant walked using a crutch in the left upper limb. Dr Diebold reported that the applicant demonstrated a very marked limp on the right leg, due to right hip pain. On examination, Dr Diebold stated that in the right hip, the applicant had tenderness in the mid-groin and a moderate restriction of movement, with irritability of hip movements. Dr Diebold reported that the applicant takes CBD oil and intermittent meloxicam, and attends physiotherapy and a chiropractor.
In relation to the right hip, Dr Diebold provided the following diagnosis:
“In the right hip, there was initially trochanteric bursitis. This is based on the contemporaneous reports of Dr Stackpool from April 2021. Clinically, this has now resolved, with no pain or tenderness in the trochanteric or gluteal regions.
Apparently, a recent MRI of the right hip has shown a labral tear. This pathology would be consistent with the clinical findings of irritability and decreased range of motion in the right hip. However, an MRI scan soon after injury did not report a labral tear, it was only seen on the recent MRI scan. There was an onset of symptoms 10 months after the injury. There is no rationale whereby a limp could cause a labral tear, or even aggravate a pre-existing labral tear, if present. Therefore, if present, I cannot identify this right hip labral tear as being work-related.”
Dr Diebold also diagnosed chronic pain syndrome, which he considered to be a strong contributing factor to the current clinical presentation.
In relation to medical treatment, Dr Diebold recommended that for the work-related condition, the applicant undergo review at a multidisciplinary pain clinic and opined that the applicant had no reasonable prospect of benefit from further physical therapies, injections or surgeries.
In relation to the applicant’s right hip, Dr Diebold stated that:
“Because I consider her right hip condition not to be work-related, I do not consider the proposed right hip surgery to be reasonably necessary for the work-related injury. If it were considered work-related, the presence of such strong signs of chronic pain syndrome would reduce the success of any surgical endeavour. This leads to concerns about the chance of improvement with surgery. I do not have access to the imaging or report. If a labral tear is present on current imaging, I would also question how small it is and whether it is an incidental finding, as it was not reported on the previous MRI scan. I would be guarded about the success rate of any further surgery on this lady.”
I note that when Dr Diebold provided his opinion, he did not have available to him the MRI of the right hip performed on 16 August 2022, nor the MRI of the right hip performed on
23 September 2023.

Findings and reasons

I note that the accepted injuries are not in dispute, and include injuries to the applicant’s bilateral knees and a consequential condition of her lower back.
The applicant’s evidence in relation to the history and her symptoms is supported by treating medical evidence. The applicant’s credibility has not been challenged.
The extensive treating medical evidence details the history and treatment of the accepted injuries and the right hip condition and has also not been challenged.

On that basis, I accept the applicant’s evidence as to her ongoing symptoms and restrictions and I accept the following history of the accepted injuries which is detailed in the evidence and summarised in the ARD and has not been disputed:
(a)    on 21 February 2020, during her employment with the respondent, the applicant slipped on high gloss floor tiles at the workplace and fell, sustaining injuries to her bilateral wrists, bilateral knees and a twisting action to her whole body;
(b)    the applicant had to stop working as a result of the accepted injuries;
(c)    the applicant had ongoing issues with her wrists and her knees which were diagnosed as triangular fibrocartilage injuries;
(d)    on 11 August 2020, the applicant underwent a left wrist arthroscopy performed by A/Prof Nicholas Smith, where a triangular fibrocartilage tear central type was diagnosed and debrided and it was noted that the applicant would require a full wrist reconstruction;
(e)    on 22 January 2021, the applicant underwent bilateral radiofrequency of the great saphenous vein and right small saphenous vein radiofrequency ablation and sclerotherapy;
(f)    on 28 June 2021, the applicant underwent right knee arthroscopy, partial meniscectomy, and meniscal repair of a posterior horn tear, performed by Dr Jun Nagamori;
(g)    post knee arthroscopy, the applicant had a superficial thrombophlebitis which was treated with ligations to block the clots from propagating;
(h)    the applicant experienced ongoing knee pain and difficulty moving the knee through full ranges of motion despite undergoing a post-surgery physiotherapy program;
(i)    around 11 July 2021, the applicant had an exacerbation of knee pain following a simple twist, resulting in a biomechanical injury to the knee;
(j)    on 25 November 2021, the applicant underwent a right wrist arthroscopy, performed by A/Prof Smith, where a triangular fibrocartilage injury was diagnosed and it was noted that the applicant would require a full wrist reconstruction;
(k)    scans of the applicant’s lower back showed probable sacroiliac irritation and the applicant was recommended to undergo sequential blocks of the innervation. The applicant initially underwent a diagnostic block on 6 December 2021 and subsequently underwent a treatment block on 28 February 2022;
(l)    the applicant continues to have ongoing pain without much relief of symptoms and was placed on cannabinoid oil as well as analgesics;
(m)     MRI scans of the lumbosacral spine have shown multilevel facet joint arthritis at the L3-4, L4-5 and S1 levels, and
(n)    in relation to the right hip, the applicant developed pain in her right hip and was examined and treated for a trochanteric bursitis and a gluteus medius tear which was shown on an MRI scan performed on 9 December 2020. An MRI scan performed on 16 August 2022 did not identify any labral tear nor bursitis. As a result of ongoing right hip pain, the applicant underwent a further MRI scan on
23 September 2023, which showed a chronic tear at the base of the superolateral and anterosuperior acetabular labrum, with minor basal chondral delamination at the acetabular rim supero-laterally and antero-superiorly; no clearly unstable chondral flap or subchondral bone marrow oedema; mild reduction in right femoral head neck offset antero-laterally; no hip joint effusion or synovitis; mild to moderate thickening of the subgluteus maximus bursa and anterior juxta-insertional gluteus medius tendinosis, without tear.
The applicant gave evidence that she developed an altered gait due to limping because of the accepted injuries which, in turn, put extreme strain on his lower back and sacroiliac joints as well as the right hip and ultimately caused the applicant’s right hip condition.
I note that the applicant’s evidence in that regard is supported by various treating medical evidence. In particular:
(a)    on 15 February 2021, Dr Stackpool, treating orthopaedic surgeon, reported that the applicant walked with a limp in the context of having developed right knee and hip pain following sustaining the accepted injuries;
(b)    on 7 July 2021 and 14 September 2021, Renee Hogden, physiotherapist, reported that the applicant continued to present with an altered gait, poor heel strike and increased knee and hip flexion throughout her stance phase as a result of the right meniscus injury. Significantly, Ms Hogden reported that the applicant’s prolonged altered gait mechanics had subsequently changed the applicant’s muscle tone of her hips and lower back, leading to ongoing reports of hip and lower back symptoms;
(c)    on 27 September 2021, Dr Jun Nagamori, sports knee surgeon, reported that the applicant continued to walk with a marked flexed knee gait and stood with an abnormal knee posture which was likely to be contributing to her anterior knee discomfort;
(d)    on 20 October 2021, 8 December 2021 and 17 January 2022, Dr Laurent Wallace, pain specialist, reported that the applicant had developed ongoing right hip pain and that the applicant’s response to diagnostic lateral branch blocks suggested that her right hip pain was coming from the right sacroiliac joint.
Dr Wallace stated that he did not think that there were any other factors contributing to the applicant’s right hip pain;
(e)    on 18 January 2022, Dr Balsham Darwish, neurosurgeon, reported that the applicant complained of right leg limping, weakness and collapse;
(f)    on 22 February 2022, Dr Nick Hartnell, surgeon, reported that the applicant had an abnormal gait which she attributed to her knee, spine and hip. Dr Hartness considered that the applicant probably did have a small undisplaced labral tear although that had not been shown on MRI;
(g)    on 29 April 2023, Dr Lance Holland-Keen reported that the applicant’s hip pain was caused by the accepted injuries;
(h)    on 26 July 2023, Dr Louis Shidiak, hip and knee surgeon, reported that the applicant’s right hip pain and difficulty weight bearing had progressed over the last three years;
(i)    on 21 September 2023, Dr Peter Walker, hip and knee orthopaedic surgeon, reported that the applicant had ongoing right hip pain which had progressively gotten worse and Dr Walker observed that the applicant was unable to put much weight on her right hip;
(j)    on 10 October 2023, Dr Walker reported that the recent MRI showed a labral tear, which was reported as chronic, meaning it had been there for some time and he suspected it had been there the whole time and had been missed on previous MRI scans;
(k)    on 19 March 2024, Dr Holland-Keen reported that the applicant was getting some back pain as a result of antalgic, asymmetrical gait which was caused by hip and knee pain;
(l)    on 2 April 2024, Matt Cranney, sports and exercise physiologist, reported that the applicant walked with an antalgic gait pattern related to her right hip, and
(m)     on 22 May 2024, Dr Holland-Keen reported that the applicant’s hip pain would not exist if it was not for the accepted injuries.
There is no evidence that the applicant had right hip symptoms prior to the fall which caused the accepted injuries.
Some medical evidence identified the possibility that the applicant’s right hip may have been injured in the fall which caused the accepted injuries. In a report dated 17 January 2022,
Dr Wallace, pain specialist, stated that the applicant’s right hip presentation was consistent with chronic pain after a fall. In a report dated 21 September 2023, Dr Peter Walker, hip and knee orthopaedic surgeon, stated that the applicant reported that she experienced right hip pain immediately upon the fall, however that was not concentrated on because other things were causing more of a problem. In a report dated 17 January 2023, independent medical expert, Dr Chandra Dave, orthopaedic surgeon qualified by the applicant, acknowledged the possibility that the applicant’s right hip was injured in the fall.
However, it appears that the applicant did not report right hip symptoms until at least several months after the fall when she sustained the accepted injuries. On 26 July 2023, Dr Louis Shidiak, hip and knee surgeon, reported that the applicant first developed right hip pain and symptoms in November 2020, which was approximately nine months after the fall which caused the accepted injuries. That is consistent with the records of the applicant’s treating general practitioner.
On 17 January 2022, Dr Wallace, pain specialist, reported that he believed that part of the applicant’s right hip pain was coming from the right sacroiliac joint.
On 24 August 2022 and 17 January 2023, Dr Chandra Dave, orthopaedic surgeon, expressed the opinion that the applicant had put strain onto her hip and lumbar spine as a result of abnormal gait and that would have contributed to her symptoms.
The respondent relies on the evidence of Dr Robin Diebold, orthopaedic surgeon. Dr Diebold reported that the applicant had right hip pain, tenderness, restriction of movement and irritability of hip movement. However, Dr Diebold did not accept that the applicant’s right hip condition was causally related to the fall which caused the accepted injuries. Dr Diebold accepted that the applicant had an altered gait as a consequence of the accepted injuries. However, Dr Diebold did not accept that the applicant’s altered gait was causally connected to the applicant’s right hip condition on the basis that “There is no rationale whereby a limp could cause a labral tear, or even aggravate a pre-existing labral tear, if present. Therefore, if present, I cannot identity this right hip labral tear as being work-related”.
Whilst it is apparent that Dr Diebold was made aware that a recent MRI had shown a right hip labral tear, it is conceded by the respondent that Dr Diebold did not personally review the MRI scan nor MRI report. Significantly, it is not apparent from Dr Diebold’s report that he was aware that the labral tear identified in the MRI scan was of a chronic nature, as was noted by the MRI report of the right hip on 23 September 2023 and by Dr Peter Walder in his report dated 10 October 2023. Dr Diebold did not consider the possibility that the previous MRI may have failed to identify a labral tear that then existed, notwithstanding that he acknowledged that pathology of a right hip labral tear would be consistent with the clinical findings of irritability and decreased range of motion in the right hip.
I find the treating medical evidence as a whole to be compelling.
For all the above reasons, in particular, I prefer and accept the evidence of Dr Chandra Dave, orthopaedic surgeon, and Dr Peter Walker, the applicant’s treating hip and knee orthopaedic surgeon. Having regard to the evidence as a whole and the history of the accepted injuries and the applicant’s right hip symptoms, I consider that their evidence provides a logical and likely explanation of the ongoing pain and symptoms that the applicant has experienced following sustaining the accepted injuries.
Considering the evidence as a whole, I consider it logical and likely, and I am satisfied on the balance of probabilities that the applicant experienced significant and ongoing pain and disability of her knees and lower back as a result of the accepted injuries. Further, I am satisfied on the balance of probabilities that this caused the applicant to walk with an altered gait, which, in turn, put strain on her lower back and sacroiliac joints as well as the right hip and caused the applicant to experience ongoing pain and symptoms in her right hip.
Applying the commonsense test to evaluate the causal chain, having regard to the evidence as a whole, I am satisfied on the balance of probabilities and find that the applicant sustained a right hip condition and that a clear causal connection exists between that right hip condition and the accepted injuries. Accordingly, I am satisfied that the applicant sustained a right hip consequential condition which resulted from the accepted injuries.
On that basis, I am satisfied that the applicant has discharged its onus of proof and that the applicant sustained a consequential condition of her right hip, as a result of the accepted injuries sustained on 21 February 2020, in particular consequential upon altered gait caused by those accepted injuries.

IS THE TREATMENT REASONABLY NECESSARY AS A RESULT OF THE INJURY AS REQUIRED BY S 60 OF THE 1987 ACT?

The law

Section 60 of the 1987 Act relevantly provides:
“60 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 and the related travel expenses specified in subsection (2).”
Burke CCJ in Rose v Health Commission (NSW),[8] stated:
“…Treatment is necessarily purposive. Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment…” (my emphasis)
[8] [1986] NSWCC2; (1986) 2 NSWCCR 32.
In Diab v NRMA Ltd,[9] Roche DP, referring to the decision in Rose v Health Commission (NSW),[10] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
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 tis place in the usual medical armoury of treatments for the particular condition.”
[9] [2014] NSWWCCPD 72.
[10] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[11]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[11] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(b)the appropriateness of the particular treatment;
(c)the availability of alternative treatment, and its potential effectiveness;
(d)the cost of the treatment;
(e)the actual or potential effectiveness of the treatment, and
(f)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
A commonsense evaluation of the causal chain is required. In Kooragang Cement Pty Ltd v Bates,[12] Kirby P (as his Honour then was) stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”[13]
[12] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[13] (1994) 10 NSWCCR 796 at [810].
In Murphy v Allity Management Services Pty Ltd[14] Roche DP stated:

“… a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). 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.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[14] [2015] NSWWCCPD 49 at [57].

Right hip arthroscopy

On 10 October 2023, Dr Peter Walker, hip and knee orthopaedic surgeon, recommended that the applicant undergo right hip arthroscopy to repair the labral tear. Dr Walker stated that arthroscopy to repair the labrum was reasonable because the applicant is so significantly incapacitated. Dr Walker acknowledged that he could not surgically address the chondral damage and that he could not guarantee a positive outcome because the applicant’s symptoms were quite marked.
I accept that, having regard to the marked nature of the applicant’s right hip symptoms, and given the inherent vicissitudes and risk in surgery of any kind, Dr Walker has not guaranteed a positive outcome of right hip arthroscopy. It is clear that Dr Walker considered the pros and cons of such right hip arthroscopy and discussed them with the applicant who nevertheless decided to proceed with such surgery.
On 26 July 2023, treating hip and knee surgeon, Dr Louis Shidiak reported that there was “no indication for any hip arthroscopy”. Dr Shidiak also stated that “in [the applicant’s] age group even if there was a labral tear not identified on MRI the surgery would be in the form of a labral debridement which would only accelerate her arthritic changes”.

On 27 August 2024, orthopaedic surgeon, Dr Diebold stated that:
“… the presence of such strong signs of chronic pain syndrome would reduce the success of any surgical endeavour. This leads to concerns about the chance of improvement with surgery. I do not have access to the imaging or report. If a labral tear is present on current imaging, I would also question how small it is and whether it is an incidental finding, as it was not reported on the previous MRI scan. I would be guarded about the success rate of any further surgery on this lady”.
I consider that the evidence of Dr Shidiak and Dr Diebold should be given less weight because it is clear that neither of them considered the imaging and report of the MRI of the right hip on 23 September 2023 which reported a chronic labral tear and other pathology.
Having regard to the evidence as a whole, I prefer and accept the evidence of Dr Walker as to the appropriateness of the particular treatment, it’s potential effectiveness and the cost of the treatment. I note that there is no clear evidence of the availability of any alternative treatment which would be potentially effective.
I note that the respondent has not challenged the estimated cost of the treatment.
Having regard to all the matters set out above, I satisfied that the treatment is reasonably necessary.
I do not need to be satisfied that the accepted injuries were the only, or even a substantial, cause of the need for the treatment.
The purpose of the right hip arthroscopy is to repair the labral tear. Having regard to my findings above, and particularly the evidence of Dr Walker, I am satisfied that the consequential condition of her right hip which the applicant sustained as a result the accepted injuries sustained on 21 February 2020 at least partly caused the need for the right hip arthroscopy. I am satisfied that it provides a logical and likely explanation for the applicant’s need for the treatment.
Applying a commonsense evaluation of the likely chain of causation of the applicant’s need for the treatment, I consider it likely and I am satisfied that the cause of the applicant’s labral tear was multifactorial and included the right hip consequential condition which the applicant sustained as a result of the accepted injuries sustained on 21 February 2020.
Accordingly, I am satisfied that the need for the treatment arose as a result of a work injury.

Chiropractic care

The applicant claims the cost of past and future chiropractic treatment.
The applicant relies on reports of Renee Hogden of Bounce Back dated 25 May 2020 and
7 July 2021.
In a report dated 25 May 2020, Ms Renee Hogden, physiotherapist of Bounce Back, reported that:
“I have been seeing [the applicant]… since 7^thof May following on treatment from a previous Physiotherapist for a wrist and knee injury after a fall at work on the 21st February.
Not having great improvements from Physiotherapy treatment alone, she had an MRI on her wrist on the 13th May which has shown a sprain of the dorsal intercarpal and ulnar collateral ligaments with a central perforation of the central disc of the TFCC.
She reports locking and clicking of her left wrist and shows a significant decrease in grip strength measuring 11kg on her left, compared to 20kg on her right. This is significantly affecting most of her activities of daily living in some way, she is still finding the brace necessary for pain management.
I have also been treating her right knee for Patellofemoral pain syndrome. Which after our initial treatments is showing improvement with manual therapy, dry needling and specific home exercise program.”
In a report dated 7 July 2021, Ms Hogden reported on the applicant’s treatment and progress as follows:
“Most recently, I have been working with Yvonne since December 2O2O regarding her ongoing right sided hip and knee pain after a fall at work.
Since receiving her injection to assist in managing her right sided lateral hip pain, this location as seen improvements in strength and we have been able to progress her exercise rehabilitation slightly.
However due to her right meniscus injury, she continues to prevent with an altered gait pattern, she continues to have poor heel strike and increased knee and hip flexion throughout her stance phase.
The prolonged altered gait mechanics have subsequently changed her muscle tone of her hips and lower back, leading to ongoing reports of hip and lower back symptoms with certain aggravating activities and well as intermittent sleep disturbance.
Therefore, we have continually been addressing her right hip and lower back in our consultations alongside her right knee rehabilitation. I would believe she would benefit from an appropriate mattress to assist in her symptom management and thus allowing further progress in her rehabilitation and recovery.”
I note that the respondent accepts injuries to the applicant’s bilateral wrists and bilateral knees. The applicant has been previously approved for chiropractic treatment with respect to the accepted injuries, which the applicant now seeks again.
I note that the clinical records of the physiotherapist are not in evidence however I am satisfied that the reports of Ms Hodgen do describe the purpose and nature of the physiotherapy treatment provided to the applicant, in particular to treat the applicant’s ongoing pain and restrictions arising from the accepted elbow and knee injuries and her back and right hip pain consequent upon those accepted injuries.
The respondent has not challenged the cost of the claimed physiotherapy treatment.
Having regard to the applicant’s evidence and the medical evidence as a whole and my findings above, I am satisfied that the applicant has experienced and continues to experience ongoing pain and limitations as a result of the accepted injuries, in particular to her bilateral wrists, bilateral knees, back and right hip. Various doctors recommended the conservative treatment of those injuries and conditions. No alternative treatment in lieu of such chiropractic treatment has been identified.
Considering the evidence as a whole and my findings above, and applying a commonsense evaluation of the likely chain of causation of the applicant’s need for the treatment, I consider it likely and I am satisfied that the claimed past and future chiropractic treatment is reasonably necessary and arose as a result of a work injury.

CBD Oil

The applicant claims the cost of future CBD oil recommended by Dr Lance Holland-Keen.
In her statement, the applicant explained that she was placed on cannabis oil because she is allergic to opoids.
In a report dated 22 May 2024, Dr Holland-Keen reported that the applicant is likely to require ongoing treatment for more than six months for significant chronic pain issues arising from her right hip pain arising from the accepted injuries. Dr Holland-Keen stated that, in addition to physiotherapy, the applicant was being treated with CBD/THC oil which was “the only effective and tolerable medications found after many medications have already been tried”.
In a report dated 29 May 2024, Dr David Gorman, consultant physician in general medicine, medical oncology, pain medicine specialist, qualified by the respondent, reported that the applicant continues on anti-inflammatory medication with CBD/THC oil to treat her right hip pain and lumbar pain. Dr Gorman expressed the opinion that the medicinal cannabis is not a reasonably necessary treatment. Dr Gorman opined that the medicinal cannabis has not made a significant improvement to the applicant’s pain, noting that she still had widespread pain and he believed that improvements in the applicant’s capacity was related to improvement in her soft tissue injuries over time. Dr Gorman opined that the applicant should continue on intermittent anti-inflammatory medication. Dr Gorman stated:
“I do not believe that medicinal cannabis reaches the reasonably necessary criteria. She has not had a significant improvement in function due to the medicinal cannabis and continues to have symptoms. She has not returned to work even though she has been on the medicinal cannabis for more than a year.
I understand that a product containing THC has been added and this also would be problematic in that it stops her driving legally.
Overall, I do not believe the prescribed medicinal cannabis meets the reasonably necessary criteria. I note that I am supported in this by the Faculty of Pain Medicine and the International Association for the Study of Pain, both of which do not support the use of medicinal cannabis for chronic pain - I have attached their position statements and a press release…
I do not believe the treatment is reasonably necessary and should not be started. Certainly, if containing THC, it is an addictive compound which will be difficult to stop…
Anti-inflammatories and paracetamol should be the mainstay of pharmacological treatment.”
In a report dated 17 January 2023, Dr Chandra Dave, orthopaedic surgeon, expressed the opinion that CBD oil (amongst other treatment) would be reasonably necessary to treat the applicant’s pain “if it is deemed so by her pain management consultants”.
In a report dated 27 August 2024, Dr Robin Diebold, orthopaedic surgeon, qualified by the respondent, reported that the applicant takes CBD oil and intermittent meloxicam, and attends physiotherapy and a chiropractor. In relation to medical treatment, Dr Diebold recommended that for the work-related condition, the applicant undergo review at a multidisciplinary pain clinic and opined that the applicant had no reasonable prospect of benefit from further physical therapies, injections or surgeries. I note that Dr Diebold did not have available to him the MRI of the right hip performed on 16 August 2022, nor the MRI of the right hip performed on 23 September 2023 when he provided his opinion.
It is clear from the evidence of Dr Holland-Keen and Dr Diebold that alternative pain treatments have proven to be unsuccessful or intolerable to date. I note that Dr Diebold is of the opinion that the applicant has no reasonable prospect of benefit from physical therapies, injections or surgeries (noting that he had not viewed the most recent MRI when he formed that opinion).
Dr Holland-Keen provided evidence that CBD/THC oil was both effective and tolerable for the applicant to treat her right hip pain. As a treating practitioner, I consider that Dr Holland-Keen has a good understanding of the applicant’s particular history and circumstances and for that reason I prefer and accept his opinion.
The respondent has not specifically challenged the cost of the claimed CBD oil.
Having regard to the applicant’s evidence and the medical evidence as a whole and my findings above, I am satisfied that the applicant has experienced and continues to experience ongoing pain and limitations as a result of the accepted injuries, in particular to her bilateral wrists, bilateral knees, back and right hip. I have found that the applicant has a right hip condition which is consequential upon the accepted injuries and that the applicant suffers ongoing right hip pain caused by that right hip consequential condition.
Considering the evidence as a whole and my findings above, and applying a commonsense evaluation of the likely chain of causation of the applicant’s need for the treatment, I consider it likely and I am satisfied that the claimed CBD oil treatment is reasonably necessary and arose as a result of a work injury.

Pain management program

The applicant claims the cost of a future pain management program recommended by
Dr Wallace.
Dr Wallace, pain specialist, provided evidence by way of several reports between
20 October 2021 and 30 March 2022. Dr Wallace initially requested approval for various treatment including medication, right sacroiliac joint injection and lateral branch blocks, ongoing physical therapy and noted that future options may include a pain management program.
On 23 February 2022, 9 March 2022 and 30 March 2022, Dr Wallace recommended various treatments including referral to an upgraded pain management program to treat the applicant’s ongoing right hip pain.
The respondent has made no submissions specifically in relation to the claim for the applicant’s cost of the pain management program.
The respondent has not challenged the cost of the claimed pain management program.
There is no evidence which challenges the reasonably necessity of the claimed pain management program to treat the applicant’s ongoing right hip pain, which I have found to be consequential to the accepted injuries.
Having regard to the applicant’s evidence and the medical evidence as a whole and my findings above, I am satisfied that the applicant has experienced and continues to experience ongoing pain and limitations as a result of the accepted injuries, in particular to her bilateral wrists, bilateral knees, back and right hip. Various doctors recommended the conservative treatment of those injuries and conditions. No alternative treatment in lieu of such pain management program has been identified.
Considering the evidence as a whole and my findings above, and applying a commonsense evaluation of the likely chain of causation of the applicant’s need for the treatment, I consider it likely and I am satisfied that the claimed pain management program is reasonably necessary and arose as a result of a work injury.

Lateral Branch Block

The applicant claims the cost of future lateral branch block recommended by Dr Wallace in his report dated 8 December 2021.
In the report dated 8 December 2021, Dr Wallace reported that the applicant had a good response to SIJ block and diagnostic lateral branch blocks which were performed on
6 December 2021. Dr Wallace noted that the applicant continued to experience right hip and he stated that he expected the applicant’s right hip pain to return. Dr Wallace recommended that the applicant undergo “Future options/ follow up include right lateral branch radiofrequency ablation if the pain returns. I would expect that it would shortly after the blocks as they were essentially diagnostic”.
On 17 January 2022, Dr Wallace reported that the applicant’s response to diagnostic lateral branch blocks on 6 December 2021 suggested that her right hip pain was coming from the sacroiliac joint. Dr Wallace stated that the applicant’s current right hip presentation was consistent with chronic pain after a fall. Dr Wallace recommenced radiofrequency ablation to give the applicant long term improvement to her pain. Dr Wallace stated that appropriate treatment for the applicant’s chronic pain required a multidisciplinary approach and he recommended a multidisciplinary interventional pain program.
On 19 January 2022, Dr Laurent Wallace recommended various treatments for the applicant’s ongoing hip and other pain. Relevantly, Dr Wallace recommended “Right sided lateral branch radiofrequency ablation as requested previously. I note that she had a positive response to the diagnostic blocks, so it makes sense that she will probably get good relief from radiofrequency ablation”.
Dr Wallace made similar requests in reports dated 23 February 2022, 9 March 2022 and
30 March 2022.
The respondent submitted that there is some confusion regarding the treatment requested, on the basis that: Dr Wallace’s request dated 16 December 2021 is not included in the ARD nor Reply; the s 78 notice dated 5 January 2022 refers to a request for a medial branch block, not a lateral branch block; and that Dr Wallace’s report dated 8 December 2021 does not address the criteria necessary for the Commission to find that it is reasonably necessary.
I note that the insurer’s s 78 notice dated 5 January 2022 noted a request for approval of a “medial branch block on 16 December 2021 from Dr Laurent Wallace”. I do not have a copy of that request for approval. However, it also referred to Dr Wallace’s report dated
8 December 2021, which was in respect of a request for lateral branch blocks.
The applicant’s statement listed the applicant’s various surgical requests, and relevantly included “On 16 December 2021, a request for a Medial Branch Block was requested by
Dr Laurent Wallace. The insurer declined this request on 5 January 2022”.
I note that the insurer’s s 287A notice dated 11 February 2022, which advised the outcome of a review of the insurer’s s 78 notice dated 5 January 2022, stated that the documents considered included the reports of Dr Wallace dated 17 January 2022 and 8 December 2022. The s 287A notice states that:
“…
·The doctor clarifies the requested treatment to be lateral branch blocks, rather than medial branch blocks. The doctor considers the requested radiofrequency ablation will provide long term improvement to your pain, as well as an increased ability to perform functional exercises, such as sitting duration, sit to stand squatting, walking distance and an increase in your ability to participate in exercise physiology…
On 19/01/2022, Dr Wallace provided further support for the requested procedure, stating you will probably receive good relief of your pain symptoms from right-sided lateral branch radiofrequency ablation, considering your positive response to diagnostic blocks.
…
On review, we consider the evidence provided by Dr Wallace has established the requested treatment is reasonably necessary, having regard to the relevant considerations of its relationship to your workplace injury, appropriateness, effectiveness, cost and the availability of alternative treatment methods.
The insurer’s decision dated 05/01/2022 is therefore withdrawn.”
The applicant’s submissions did not specifically address the respondent’s confusion regarding whether the request is for a medial branch block or a lateral branch block, except to state that “… lateral branch block… are reasonably necessary treatments as a result of injuries sustained on 21 February 2020.
The respondent has not challenged the cost of the claimed pain management program.
Having regard to the evidence as a whole, and particularly the insurer’s s 287A notice dated 11 February 2022, I consider that any confusion regarding the nature of the branch block requested has been clarified, and it is clear that the applicant’s request is for a lateral branch block.
There is no medical evidence which challenges the reasonably necessity of a lateral branch block to treat the applicant’s ongoing right hip pain, which I have found to be consequential to the accepted injuries.
The respondent has not challenged the cost of the treatment.
Having regard to the applicant’s evidence and the medical evidence as a whole and my findings above, I am satisfied that the applicant has experienced and continues to experience ongoing pain and limitations as a result of the accepted injuries, in particular to her bilateral wrists, bilateral knees, back and right hip. Various doctors recommended the conservative treatment of those injuries and conditions. No alternative treatment in lieu of such pain management program has been identified.
Considering the evidence as a whole and my findings above, and applying a commonsense evaluation of the likely chain of causation of the applicant’s need for the treatment, I consider it likely and I am satisfied that the lateral branch block is reasonably necessary and arose as a result of a work injury.

Past pharmaceutical expenses and other treatment costs that the applicant has incurred

The applicant claims the costs of various past pharmaceutical medication and other treatment costs and transport costs which have been incurred since the applicant sustained the accepted injuries.
The respondent submits that there is inadequate evidence to satisfy the Commission that those incurred costs of pharmaceutical medication were prescribed due to the accepted injuries or that they provided any therapeutic benefit. The respondent has not challenged the quantum of the various claimed incurred expenses.
The applicant has not specifically addressed the claimed pharmaceutical expenses and those other treatment costs in submissions.

The applicant’s evidence includes various pharmacy receipts for medication prescribed by
Dr Holland-Keen including CBD oil, nonsteroidal anti-inflammatory medication Meloxicam and Mobic.
Meloxicam is a nonsteroidal anti-inflammatory medication that was prescribed for the applicant by Dr Holland Keen. It is clear from the treating medical evidence that the applicant was prescribed nonsteroidal anti-inflammatory medication for pain relief in respect of the accepted injuries and right hip pain.
Having reviewed the tax invoices and evidence for the various claimed past pharmaceutical expenses and other treatment costs that are claimed by the applicant and having regard to the evidence as a whole and my findings above, I am satisfied that they have been incurred in the treatment of the applicant’s accepted injuries and right hip pain consequential upon those accepted injuries and, further, that they were reasonably necessary as a result of those accepted injuries.

SUMMARY

For all the reasons set out above, I find as follows:
(a) the applicant sustained a consequential condition of her right hip, as a result the accepted injuries sustained on 21 February 2020;
(b) the claimed right hip arthroscopy treatment to repair the labral tear proposed by Dr Peter Walker, orthopaedic surgeon, is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act;
(c) the claimed past and future chiropractic treatment is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act;
(d) the claimed past and future CBD oil is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act;
(e) the pain management program recommended by Dr Wallace, pain specialist, is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act;
(f) the lateral branch block recommended by Dr Wallace in his report dated
8 December 2021 is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act, and
(g) the claimed past pharmaceutical expenses and other treatment costs is reasonably necessary treatment as a result of the accepted injuries, pursuant to s 60 of the 1987 Act.
The Commission orders:
(a) In accordance with s 60 of the 1987 Act, the respondent to pay the past costs of and incidental to:
(i)chiropractic care from Clarence Valley Chiropractic and Balgonie Chiropractic Radiology scans and reports from I-MED Radiology and Castlereagh Imaging;
(ii)pharmaceutical medication from Maclean Discount Pharmacy and Cincotta Discount Pharmacy;
(iii)orthopaedic treatment from Specialty orthopaedics and Dr Peter Walker;
(iv)treatment from Proactive Spine & Sports Medicine;
(v)general medical treatment from Dr Holland-Keen, and
(vi)transportation costs involved with the attendance at the above appointments.
(b) In accordance with s 60 of the 1987 Act, the respondent to pay the future costs of and incidental to:
(i)right hip arthroscopy treatment to repair the labral tear proposed by
Dr Peter Walker, orthopaedic surgeon;
(ii)lateral branch block recommended by Dr Wallace in his report dated
8 December 2021;
(iii)pain management program recommended by Dr Wallace, pain specialist;
(iv)CBD drops and CBD oil prescribed by Dr Lance Holland-Keen, and
(v)chiropractic treatment.

[2025] NSWPIC 228

27 May 2025