Kuru v Total Active Placement Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kuru v Total Active Placement Pty Ltd [2023] NSWPIC 397
APPLICANT:	Nicholas Kuru
RESPONDENT:	Total Active Placement Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	9 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for declaration and orders reproposed surgery for consequential hip condition; whether hip condition a consequence of accepted back injury through altered gait; whether absence of clinical notes determinative; whether hip condition caused by unrelated disease condition; whether inconsistencies between treating surgeon and medico-legal expert affected; whether onus satisfied; Held – pathology agreed unanimously to be arthritis; contemporaneous evidence limited but supported claimant and medico-legal expert’s history that only the back was injured; treating surgeon’s assumption that hip also injured not accepted; claimant amended claim to delete reliance on injury to hip at hearing; Moon v Conmar, Secretary, New South Wales Department of Education v Johnson, Qannadian v Bartter Enterprises Pty Limited, and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan considered and applied; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The accepted injury to Mr Kuru’s lumbar spine on 6 November 2018 caused a consequential condition to develop in his right hip. 2. Accordingly, the respondent will pay the costs of and associated with the surgery proposed by Dr Peter Walker on 31 May 2021.

STATEMENT OF REASONS

BACKGROUND

Nicholas Kuru, the applicant brings an action against Total Active Placement Pty Ltd, the respondent for a declaration that the proposed surgery being a total right hip replacement is reasonably necessary.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Is the right hip condition consequential to the subject back injury.
(b) Is the proposed surgery reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard by way of conciliation and arbitration on 2.June 2023. The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Medea Hanna of Messrs Monaco Solicitors. The respondent was represented by Mr Tom Grimes instructed by Messrs Lee Legal Group. Georgia O’Grady appeared for the insurer (excused after conciliation).
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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 24 May 2023;
(c)    Reply and attached documents;
(d)    respondent’s ALD dated 30 May 2023, and

(e) respondent’s ALD dated 1 June 2023.

Oral evidence

Mr Kuru gave a short evidence at the commencement of the proceedings that he had undergone two cortisone injections in the previous eight weeks, without any lasting benefit.

FINDINGS AND REASONS

Preliminary

At the outset of the hearing Mr Stanton made amendments without objection. As a result of the amendments the “injury description box” in the ARD form now:
(a)    pleads the relevant date as “6/11/2018”;
(b)    has deleted the words “and right hip” in the first paragraph, and
(c)    has deleted the words “and/or in the alternative” from the second paragraph.
The insurer accepted that Mr Kuru injured his lower back on 6 November 2018 and the issue therefore was whether Mr Kuru’s hip condition was caused as a consequence of his back injury. That the proposed surgery was reasonably necessary was but faintly challenged.

Applicant’s statement

The applicant made a statement on 1 December 2022. He said at [5] that when he slipped on a collapsible milk crate and landed squarely on his buttocks, he experienced blunt trauma to his lower back and hips evenly. He said he did not land on a particular side.
At [6] he said that he experienced a great deal of lower back pain and did not notice any in the hip. He said he considered the possibility that he might have experienced some hip pain but said it was largely overshadowed by his lower back pain.
He said:[1]
“…… It is possible that I experienced some hip pain….”
[1] ARD page 2 at [6].
Mr Kuru said at [7] his lower back injury caused him to walk with a limp as he could not reliably put weight onto his left side. He said:
“I postulate that this may have also affected my hip injury….”
At [8] Mr Kuru mentioned a groin pain he was suffering prior to 8 October 2020 which caused him to attend the offices of his general practitioner (GP) on 8 October 2020. Mr Kuru could feel the sensation of bone on bone grinding from that pain. Mr Kuru noted that the GP had made a note that the hip injury related to the subject injury.
Mr Kuru said that on 17 December 2020 he underwent an MRI scan. He produced the conclusion of the radiologist of osteoarthritic change in the hip.
On 21 May 2021 he attended Dr Peter Walker from whose report he quoted. Mr Kuru said that Dr Walker indicated that he needs a hip replacement and Mr Kuru noted that Dr Miniter also agreed with the passage of time he would need further surgical management.
Mr Kuru then made some comments about his encounter with Dr Miniter, it being clear that he was not satisfied with Dr Miniter’s approach.

Dispute notices

A s 78 notice was issued on 25 June 2021[2] and the s 287A notice was issued on 2 November 2022[3].
[2] Reply page 1.
[3] ARD page 56.
Liability was denied respect of the claim for the right hip either as an injury or as a consequential condition to the subject back injury.

Dr Jeff Lee

Dr Lee from Myhealth Rhodes was Mr Kuru’s GP initially. Dr Lee issued a report directed to Professor Van Gelder dated 29 November 2018. Dr Lee, in referring Mr Kuru to Professor Van Gelder for treatment and management, said:[4]
“…Pt. is a truck driver. He slipped and fell backwards, injuring his neck and back early Nov….”
[4] ARD page 20.

Dr Peter Walker

Dr Walker, hip and knee orthopaedic surgeon issued reports dated 31 May 2021, 1 June 2021, 14 November 2022,[5] and 24 May 2023.[6]
[5] ARD pages 19, 55 and 18 respectively.
[6] ALD 24 May 2023, page 1.
The history taken by Dr Walker on 31 May 2021 was that Mr Kuru had slipped on a crate and slippery floor “and landed on the right hip and back”. Dr Walker said:
“… He has both the right hip and back injury…”
On examination Dr Walker noted that Mr Kuru had an antalgic gait.
Dr Walker noted that degenerative changes to the lateral aspect of the acetabulum (presumably the right knee) were shown on X-ray and MRI scan. Dr Walker recommended a hip replacement.
On 1 June 2021 Dr Walker made an application for approval to the insurer (which was refused and has resulted in this case).
On 14 November 2022 Dr Walker repeated the history he had taken on 31 May 2021. Dr Walker noted that Mr Kuru had not been back to work since the injury, and that the hip pain was located in the adductor area of the groin.
He noted that Mr Kuru was in significant pain and unable to work. Mr Kuru’s life had been “significantly affected” by the condition, he said.
Dr Walker said:[7]
“…... I do believe that the proposed hip replacement surgery is necessary as a result of the workplace injury because he had a well-documented injury to the lateral aspect of his hip which can cause post-traumatic arthritis with no other predisposing factors and no previous problems with his hip.”
[7] ARD page 18.
In his report of 24 May 2023 Dr Walker restated his view that the right hip condition had actually been injured in the subject injury. His finding was based on the history he took from Mr Kuru. Dr Walker said:
“…It would be helpful to know if there are any notes from his GP after this 2018 injury or any other documentation but at least in the notes from Dr Sadaf in 2020 this pain was more likely consistent with hip problems than the back. The alteration in gait is also more likely to be from the hip rather than the back. It is very difficult to say whether or not his hip problem is entirely due to his fall or also subsequently related to the back. Certainly, any significant alteration in gait from any back problem would affect the hip but the most likely scenario is that it is predominantly a hip injury on its own.”

Associate Professor Nigel Hope

Associate Professor (Dr) Hope, orthopaedic surgeon, reported on 10 October 2022.[8]. He noted that the fall at work had injured the lumbar spine. He said:
“This resulted in changes in gait causing right hip pain some two years later.”
[8] ARD page 12.
Dr Hope noted that the right hip had been symptom free prior to the subject injury.
On examination he said:[9]
“There was a severely antalgic gait, abductor weakness and severe stiffness (range of motion of 0° to 6° flexion, obligatory external rotation in flexion, no internal rotation, 20° fixed external rotation, no abduction and no adduction) with severe pain on rotational stress testing.”
[9] ARD page 14.
Dr Hope diagnosed right hip osteoarthritis and he recommended the proposed right hip arthroplasty.
Dr Hope summarised by saying:[10]
“The history is of work-related lumbar spine injury occurring on 8 November 2018 with consequential right hip injury due to altered gait changes some two years later.”
[10] ARD page 16.
Dr Hope was asked to comment an opinion from Dr Miniter that “the right hip injury is in no way related to the compensable injury”. Dr Hope said:[11]
“The right hip condition is directly related to the compensable injury. The right hip was previously symptom-free. A well described lumbar spinal injury occurred at work in 2018. Two years of gait changes resulted in right hip pain as a consequential injury.”
[11] ARD page 17.

35. Dr Hope recorded the following question and answer:[12]

“5. Is the workers condition a disease? If so, was the worker's employment the main contributing factor to the contraction of the disease, or to the aggravation, acceleration, exacerbation or deterioration of that disease? Please explain.
The condition is not a disease.”
[12] ARD page 17.

Associate Professor Paul Miniter

Associate Professor (Dr) Paul Miniter, orthopaedic surgeon, gave four reports dated 25 May 2021[13], 21 June 2021[14], 11 December 2021[15] and 31 May 2023[16].
[13] Reply page 61.
[14] Reply page 18.
[15] Reply page 21.
[16] Respondent’s ALD dated 1 June 2023.
On 25 May 2021 Dr Miniter noted immediately that Mr Kuru had “significant disease affecting the right hip.” Dr Miniter said that although it was not a work-related issue, it was a serious problem and needed to be managed.
The history taken by Dr Miniter was simply that Mr Kuru slipped on a panel which was on the ground. He noted that the fall had been heavy and that an MRI scan was taken and that indeed he was seen by Dr James Van Gelder.
Dr Miniter noted an MRI scan of the hip dated 17 December 2020, ordered by Dr Sidarth, who was by then Mr Kuru’s GP. Dr Miniter noted that the pathology therein demonstrated was genuine and “at least partially” explained Mr Kuru’s clinical presentation.
On physical examination Dr Miniter did not comment on whether there was an antalgic gait. He advised injection of local anaesthetic and cortisone and said he would be very interested to see how much improvement followed. He said:[17]
“If the hip is much improved with an injection then one would postulate that total hip replacement is the next logical sequence and this may facilitate some improvement in his return to work capacity.”
[17] Reply page 14.
Dr Miniter accepted that there had been a genuine low back injury. In considering the question of capacity Dr Miniter said:
“However, I do agree that he has some conditional fitness for work and this will be determined at least partially by the injection which I have suggested in the right hip joint proper. Whilst I do not believe the hip is specifically related to the work place injury, it remains that it is contributive to his current presentation and we need to ascertain the benefit that may accrue as a result of the injection which I have recommended.”
On 21 June 2021 Dr Miniter repeated that he did not believe the right hip was related to the compensable injury. Dr Miniter said that he could not see a relationship between hip pain and a “minor episode in the workplace”.
He agreed that Mr Kuru “definitely required” further surgical management to the right hip with the passage of time. He said that the proposed surgery was as a result of his degenerative disease.
On 11 December 2021 Dr Miniter found Mr Kuru to be fit to return to all activities of duties.
In his report of 31 May 2023[18] Dr Miniter made some comments of a disparaging nature as to Mr Kuru’s capacity. Nonetheless he said of Mr Kuru’s right knee condition that it was:[19]
“…one which one would have to regard as reasonably straightforward and manageable by injection therapy followed in all likelihood by total hip replacement.”
[18] Respondent ALD 1 June 2023.
[19] Respondent ALD 1 June 2023 page 2.
Dr Miniter also referred to a report that was not before the Commission by Dr James Van Gelder. Dr Miniter did not say on what date that report had been written, but he noted that the history taken by Dr Van Gelder was that there was injury to the left-hand side of the lower back and he “made no mention of the possibility” of any hip involvement. Dr Miniter also referred to a report by Dr Ronald Thomson, and some GP notes.
Dr Miniter referred to Mr Kuru’s comments and simply stated that the issue with Mr Kuru’s right hip should not prevent him from working. If an injection had been given, Dr Miniter said, it was entirely possible his hip may have settled for a significant period of time – and indeed delayed requirement for at total hip replacement.

Contemporaneous material

The notes of the Emerald Hills Medical Pty Ltd were lodged.[20] Mr Kuru first consulted this practice on 27 April 2020 by telephone, attending Dr Fasiha Sadaf. Mr Kuru attended the practice on 20 May 2020 for a “meet and greet session,” and it appeared from the entries through to 23 September 2020 that there was some difficulty in having the relevant files and reports transferred to the practice. There was a case conference on 23 September 2020 during which Dr Sadaf noted that an independent assessment had been arranged.
[20] ARD page 25.
On 8 October 2020 she reported:
“also walking with a bit limp.
Pain in the right hip”.
Dr Sadaf recorded on 21 October 2020:
“ongoing hip and groin pain
he is saying that he developed it because of back pain as he was putting a lot of pressure on [his] call to get up from the [couch] as has pain in lower back and thighs”
On 5 November 2020 Dr Sadaf noted that Mr Kuru had developed right hip pain with some fluid in the joint, likely secondary to the chronic back pain. He had at that stage also a right inguinal hernia which had developed after the injury “as he strains and struggles to get off the couch”.

SUBMISSIONS

Mr Grimes

Mr Grimes submitted that there was a lacuna in the contemporaneous evidence. He referred to the report of Dr Lee of 29 November 2018, noting there was no report of an antalgic gait by Dr Lee, and said it was the only contemporaneous document produced by the applicant, the next most recent being in May 2020.
Mr Grimes conceded that Mr Kuru was observed to be walking with a limp by Dr Sadaf on 8 October 2020, but the cause of the limp was not clear, Mr Grimes said. Mr Kuru had said that he experienced groin pain with the sensation of “bone on bone” prior to his appointment on 8 October 2020. This, Mr Grimes said, might have been the cause.
Similarly, Mr Kuru complained to Dr Sadaf that because of his back pain he had difficulty in getting out of the couch, which caused his hip pain. That again was not related to an altered gait, Mr Grimes said.
Mr Grimes referred to Dr Miniter’s reports. Dr Miniter had suggested that the right hip condition could have developed spontaneously as a result of his osteoarthritic condition progressing. Mr Grimes referred to an entry in Dr Sadaf’s notes of 21 December 2021 which showed the hip pain was worsening and Mr Kuru was using crutches. He referred to a further entry of 23 November 2021 which noted that Mr Kuru had not had a cortisone injection. There was no medical evidence to explain why it was that the recommended cortisone injections had not been undergone, Mr Grimes submitted.
Mr Grimes submitted that the report of Dr Hope confirmed Dr Miniter’s observation that there was a two year gap before the right hip condition manifested itself. This onset might equally have been caused by the unrelated onset of arthritic symptoms, as was postulated by Dr Miniter, Mr Grimes submitted.
Mr Grimes referred to the history taken by Dr Walker, noting that it was inconsistent with the statement by Mr Kuru. Dr Walker’s opinion was that Mr Kuru had fallen on his hip at the time of his injury and although Mr Kuru explicitly stated that he fell squarely on his buttocks, there was no evidence from his GP at the time to clarify that history. This was completely different from the history assumed by Dr Hope. It was quite possible that the altered gait had been caused by the deteriorating degenerative condition of Mr Kuru’s hip, given the space of time before its onset.
Mr Grimes referred to Dr Walker’s opinion that the most likely explanation for the altered gait was that it had been caused only by the developing hip condition itself. Accordingly Mr Grimes submitted that the applicant had not met his onus.
Mr Grimes conceded that Dr Miniter agreed that the surgery was reasonably necessary, however he had recommended that an injection be given first. Although there was now evidence from Mr Kuru that he had undergone two injections, there was no expert evidence before me to explain how the temporary benefit received therefore related to his current need for surgery.

Mr Stanton

Mr Stanton said there was no challenge to the happening of the event of 6 November 2018. The insurer had been satisfied that an event had occurred and paid weekly compensation over a period of years. What had suspended those payments was Mr Kuru’s refusal to attend medical examinations.
The absence of contemporaneous documentation over that time was accordingly of little moment, Mr Stanton submitted. Mr Kuru’s description of the onset of his hip pain was acceptable, he submitted. There was a complication in that Mr Kuru suggested that his groin might have been involved, but the radiological evidence showed that there was disc pathology. Dr Lee’s report of 29 November 2018 demonstrated significant pathology. There was support from various practitioners that Mr Kuru was limping. Dr Walker noted it, Dr Sadaf noted it, and the radiological picture contained in the MRI of 17 December 2020 demonstrated osteoarthritic change in the right hip.
In any event, Mr Stanton submitted, the claim was that Mr Kuru’s right hip condition was a consequential condition, and the alleged lacuna was not crucial to that determination. It was consistent with Mr Kuru’s evidence that the condition came on over a period of time, Mr Stanton said, people do not just go running to their GP to complain. If a problem became persistent then they would seek help from their GP, which was what Mr Kuru had done, he said.
The evidence established that the onset of his hip condition began in about October 2020 or perhaps a little earlier, but the timeline was consistent with what might be expected. As Mr Kuru’s limping continued the hip condition worsened, Mr Stanton submitted, which was consistent with Mr Kuru’s evidence.

Mr Stanton observed that Mr Kuru had been in receipt of weekly compensation for some years, and the insurer would have a significant file covering the whole of Mr Kuru’s medical history. Dr Miniter had referred to an opinion by Dr Van Gelder that was not in evidence, and it followed that the insurer must have been in possession of other material that it chose not to rely on.
Mr Kuru’s evidence demonstrated a causally related series of events that had made a material contribution to Mr Kuru’s symptom complex, Mr Stanton said.
Dr Hope recorded a history that was consistent with Mr Kuru’s statement, Mr Stanton said. Dr Walker’s history was based on a misapprehension about the history of the injurious event, but nonetheless his opinion was consistent that the back injury had made a material contribution to the onset of the condition in the right hip. All medical opinions – including that of Dr Miniter – agreed that the proposed surgery was reasonably necessary. Dr Miniter accepted the pathology but gave a different diagnosis for its presence. I would accept the opinions of Dr Hope and Dr Walker in that regard, Mr Stanton submitted. No novus actus had been established.
Dr Miniter’s view that an injection should precede the surgery had been satisfied, Mr Stanton said.

DISCUSSION

The standard of proof required to demonstrate that a claimant has suffered a consequential injury has what is often described as a low bar, and is not dependent on proof that an injury has occurred.[21] What is required is a commonsense evaluation of the causal chain to enquire whether the subject injury has materially contributed to the onset of the condition claimed, unbroken by a novus actus interveniens.[22]
[21] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [45].
[22] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [53].
The subject injury in this case was the injury to Mr Kuru’s lumbar spine when he slipped on a collapsible milk crate and fell. As indicated, when the matter came before the Commission the claim for the right hip was expressed in the alternative – that Mr Kuru also injured his right hip in the fall, or that his right hip became symptomatic as a consequence of injuring his lumbar spine. Mr Stanton eschewed any reliance on the allegation of injury to the right hip, and withdrew that claim at the outset, so that the sole issue is whether Mr Kuru’s right hip condition is consequential.
The respondent raised a number of factual issues to suggest that the causal chain had been broken – indeed that there had been no causal chain between the injury to the lumbar spine and the right hip condition.
The respondent pointed to an alleged lacuna in the evidence. The injury occurred on 6 November 2018, but with the exception of the referral by Dr Jeff Lee, Mr Kuru’s GP at the time, to orthopaedic surgeon Dr Van Gelder on 29 November 2018, the most contemporaneous medical evidence was that from Dr Fasiha Sadaf Mr Kuru’s GP from April 2020. Dr Lee was from the Myhealth Medical Centre in Rhodes, and Dr Sadaf from Emerald Hills Medical Pty Ltd.
This lacuna opened up a number of explanations for the hip condition when Mr Kuru’s narrative of the onset of his hip pain was finally confirmed by the Emerald Hills Medical centre notes.
Firstly, the respondent submitted that Dr Miniter’s opinion might therefore be correct – that the pathology identified by the MRI scan of 17 December 2020 demonstrated substantial degenerative disease affecting the right hip, which was a more likely cause of his symptomatology than what Dr Miniter described as a “minor episode in the workplace.”
This explanation is rejected. Dr Miniter himself described that when Mr Kuru, whom he described as “a powerful man standing 6’6’’ and weighing 140kg,” slipped on the collapsible box, he fell “heavily.” The injurious event has caused significant damage to Mr Kuru’s lumbar spine, as the investigations undertaken by Dr Lee demonstrated in his referral to Dr Van Gelder demonstrated on 29 November 2018. Mr Kuru suffered a disc protrusion at L4/5 and bilateral radicular paraesthesia with nerve involvement at the left L5 descending nerve root and central canal contact with the right S1 nerve root. The episode could not be described as “minor.”
Further, there is no evidence that Mr Kuru was suffering any right hip symptoms prior to the back injury. Whilst the respondent submitted that no evidence had been lodged covering the time from 29 November 2018 and April 2020, there is some substance in the submission that, as Mr Kuru was being paid compensation for some years, it is a reasonable assumption that the insurer would therefore have had some medical material covering the missing years. Indeed, Dr Miniter in his report of 31 May 2023 appeared to have access to reports from Dr Van Gelder and Dr Ronald Thomson. He may also have had access to the missing GP notes as he said:[23]
“I note in passing that his general practitioner’s notes are interesting whereby this individual was enthusiastic to see another doctor having been reviewed by Dr Walker. There is mention of the GPs notes of distrust of doctors in general terms.”
[23] ALD 1 June 2023, page 5.
There was no mention of any doctor distrust in the Emerald Hills Medical Pty Ltd notes and it would seem therefore that Dr Miniter had available the clinical notes from Myhealth Rhodes. This supports Mr Stanton’s submission that the lacuna was of little moment in any event.
Dr Miniter’s belief that consequential conditions are not accepted by the medical community is plainly mistaken, as Dr Hope demonstrated in this case, and as has been continually demonstrated in the long experience of this Commission and its predecessor, the Workers Compensation Commission, by a large body of medical opinion. Dr Miniter’s statement to the opposite demonstrates something less than an impartial expert opinion, which may accordingly be accorded less probative weight in any event.
Secondly, the respondent referred to an entry in the notes of Emerald Hills Medical Pty Ltd which were capable, it submitted, of establishing that other causes for the right hip symptoms might be responsible. The entry of 21 October 2020 suggested that Mr Kuru said that his ongoing hip and groin pain developed whilst getting up from the couch, Mr Grimes contended, but he did not emphasise that the note also recorded that Mr Kuru said that his hip pain developed “because of back pain.” In any event, the dangers of making causation findings on the entries in the notes of health professionals is well known.[24] I regard that submission as speculative and of no substance.
[24] See e.g. the decision of DP Michael Snell and the authorities cited in in Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50.
Thirdly, the respondent referred to the expert medical evidence relied on by Mr Kuru. There was a significant difference between the opinions of Dr Walker, the treating orthopaedic surgeon, and Dr Hope, the medico-legal expert.
Dr Walker took a history that differed from both that of Dr Hope and Mr Kuru himself. Dr Walker, as indicated, took a history that when Mr Kuru slipped and fell, he landed “on the right hip and back.” He postulated a theory that accordingly there had been an injury to the right hip when he fell. This I presume was the basis of the original pleading that Mr Kuru’s right hip had been injured when he fell.
Dr Hope, on the other hand, recorded a history that the injurious event only injured the lumbar spine. Both opinions agreed that Mr Kuru’s diagnosis was arthritis, but Dr Walker described his condition as “post-traumatic” arthritis, whilst Dr Hope simply diagnosed “right hip osteoarthritis.”
These differing diagnoses led to different opinions as to causation. Dr Hope advised that the lumbar spine injury led to an altered gait “for some two years [which] resulted in right hip pain in 2020.” He described the mechanism as being a “consequential right hip injury.” As Dr Hope did not suggest that there had been a hip injury in the injurious event of 6 November 2018 I assume that he meant that the right hip condition was a consequential condition, rather than injury. He did not articulate just why the altered gait had caused the right hip injury, but as he diagnosed right hip osteoarthritis, it was possible to infer he meant that the altered gait had aggravated that condition. However, that in turn raises a question as to why Dr Hope answered the question posed by his retaining solicitors that “the condition is not a disease.” As has been seen, the question he was answering was whether Mr Kuru’s employment was the main contributing factor to the contraction or aggravation, acceleration, exacerbation or deterioration of a disease.
Dr Walker, no doubt relying on the history he had taken of an injury to the right hip on 6 November 2018, said in his report of 14 November 2022 that the post traumatic arthritis had been caused by “a well-documented injury to the lateral aspect of his hip.” In his report of 19 May 2023 he confirmed the history he had obtained from Mr Kuru of hip and back pain following the event of 6 November 2018, but qualified his opinion by noting that there were no contemporaneous notes from his GP or any other similar documentation.
The respondent argued that Dr Walker’s view that the alteration in gait was more likely to be from the hip rather than the back appeared to favour the approach taken by Dr Miniter, who maintained that the relationship between the arthritic right hip condition and the back injury was non-existent. However, Dr Walker concluded by acknowledging that there was an argument both ways, and that an altered gait caused by the lumbar spine injury would subsequently cause the right hip symptomatology. I do not see anything in Dr Walker’s report to give any comfort to Dr Miniter’s theory that there was an unrelated origin to Mr Kuru’s right hip condition.
It can thus be seen that whilst all medical experts agreed that Mr Kuru’s right hip problem has been caused by arthritis, there is disagreement as to how it is related to his employment. There is however unanimity amongst all the experts as to its severity. Dr Miniter said it was a “serious problem” that needed to be managed clinically. Dr Walker said that Mr Kuru could hardly walk, and was seriously incapacitated, and Dr Hope noted a severe loss of lower limb function.
Mr Kuru’s statement was given over four years after the injury, on 1 December 2022. There is always a danger that after such a period of time that any claimant might have quite innocently reconstructed his memories of what actually occurred, and it is helpful to have recourse to any contemporaneous evidence to resolve any conflict or inconsistency, relevantly as to causation in this case, that might arise. Although Mr Grimes stressed the absence of contemporaneous evidence in Mr Kuru’s case, some material was available.
Dr Lee, it will be remembered, referred Mr Kuru to Dr Van Gelder on 29 November 2018. There was no mention of the right hip in that referral, rather Dr Lee advised that Mr Kuru had injured “his neck and back.” Further, in his report of 31 May 2023 Dr Miniter had access to Dr Van Gelder’s opinion and made the point that there was no complaint made about the right hip to Dr Van Gelder.
It is probable therefore that, contrary to the history taken by Dr Walker, the right hip was not injured on 6 November 2018.
I therefore accept the description of the injury given by Mr Kuru himself. Mr Kuru went to some trouble to clarify the detail of his fall. I assume that was done with the awareness of the inconsistency in the history taken by Dr Walker, hence my comments above about the dangers of reconstruction. However the account given by Mr Kuru has been supported by the contemporaneous evidence as indicated and his evidence may be accepted that when he slipped on the collapsible milk crate, he did indeed land “square on my buttocks” and not “on a particular side.”
It follows that I am also satisfied that Dr Hope took a correct history and I accordingly accept his opinion that the altered gait caused by the back injury triggered the right hip symptomatology. The question as to why Dr Hope stated that the right hip condition was not a disease does not have to be answered, as where a consequential condition is claimed the exact pathology does not necessarily have to be identified.[25] In this case there is unanimity as to the pathology, and no argument was addressed by the respondent as to Dr Hope’s opinion that it was not a disease, when his diagnosis was right hip osteoarthritis.
[25] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 per DP Snell at [169].
As to Dr Miniter’s suggestion that an injection should precede the surgery because it might have settled the symptoms, I note Mr Kuru’s evidence before the Commission on 2 June 2023 and accept that he has in fact had two injections which only provided temporary relief. Dr Miniter accepted that the proposed surgery would eventually be necessary in any event.

SUMMARY

For these reasons I am satisfied that the accepted injury to Mr Kuru’s lumbar spine on 6 November 2018 caused a consequential condition to develop in his right hip.
Accordingly, the respondent will pay for the costs of and associated with the surgery proposed by Dr Peter Walker on 31 May 2021.

[2023] NSWPIC 397

9 August 2023