Laney v Australian Turf Club Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Laney v Australian Turf Club Limited [2024] NSWPIC 51
APPLICANT:	Justin Laney
RESPONDENT:	Australian Turf Club Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	9 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disputed injury to left knee and declinature of proposed total left knee replacement surgery in circumstances where applicant had prior degenerative changes in the knee; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd and Murphy v Allity Management Services applied; Held – the applicant has sustained an injury to his left knee pursuant to section 4(a) in the course of employment with the respondent; proposed total left knee replacement surgery is reasonably necessary treatment; respondent is to pay the costs of the proposed surgery and ancillary treatment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained an injury to his left knee pursuant to s 4(a) of the Workers Compensation Act 1987 in the course of employment with the respondent on 13 August 2021. 2. The applicant has established that his employment with the respondent was a substantial contributing factor to his work related injury on 13 August 2021 as required by s 9A of the Workers Compensation Act 1987. 3. The proposed total left knee replacement surgery is reasonably necessary treatment as a result of the injury on 13 August 2021. 4. The respondent is to pay the costs of the proposed surgery and ancillary treatment pursuant to the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

The name of the respondent is amended to Australian Turf Club Limited. Mr Laney was employed by the respondent as a groundsman, having initially commenced as a casual employee in 2008 and thereafter becoming a full-time employee.
In his Application to Resolve a Dispute (ARD) Mr Laney pleads that he sustained injury on
13 August 2021 while in the course of his employment with the respondent when he unloaded some chemical bottles into his buggy and drove them to the gardener’s section which had blue metal flooring. He asserts upon exiting the buggy his left knee twisted awkwardly and buckled. He grabbed hold of the buggy to stop his fall and attempted to walk into the shed and his knee completely gave away causing him to fall to the ground.
The claim for compensation in these proceedings is confined to the proposed total left knee replacement surgery and associated expenses recommended by Dr Eli Olschewski in report dated 19 July 2022.
The respondent is a licensed self-insurer and its workers compensation administrator, Gallagher Bassett Services Pty Ltd, has issued several declinature notices dated
31 October 2022, 14 November 2022, and 20 June 2023. The first notice accepted liability for the knee injury on 13 August 2021 but denied liability for the proposed surgery. However, Gallagher Bassett advised, that as they were waiting receipt of the independent medical examination report from Dr Powell, liability was disputed but that they would review the declinature when it was received. They referred to a certificate of capacity from Dr Tioavkin dated 1 August 2022 indicating that Mr Laney was fit for suitable duties. They then state the evidence on their file suggests that the left knee injury is pre-existing. However, it is somewhat troubling when they list the evidence when making the decision they only refer to the certificate of capacity and the surgery request of Dr Olschewski. It is unsatisfactory that they do not list and refer to the “evidence on file”.
In any event, Gallagher Bassett issued the second declinature notice dated
14 November 2022. They now dispute that Mr Laney suffered an injury as per s 4(a) and
s 4(b) of the Workers Compensation Act 1987 (the 1987 Act). They also declined liability for weekly compensation and s 60 expenses. Yet in the reasons to support this total declinature they refer to Dr Powell’s report dated 8 September 2022;
“Dr Powell also opines that whilst the initial injury occurred at work, it would be considered to represent a substantial contributing factor in the aggravation of the pre-existing degenerative disease process. However, any aggravation related to that incident would have settled by now and it therefore resolved.
Dr Powell does not believe your employment continues to represent the main contributing factor in the aggravation of the pre-existing degenerative disease process involving the left knee.”
The fact that the doctor opined that any aggravation of the pre-existing degenerative disease process in the knee had “resolved”, does not provide a basis to decline liability under s 4(a).
On 31 May 2023 Mr Laney’s solicitors requested a review of this decision forwarding further medical evidence. It was sought that Gallagher Bassett review their decision in relation to liability for the subject incident, the proposed surgery and weekly payments.
On 20 June 2023 Gallagher Bassett issued the final dispute notice advising that they maintain the declinature. Again it is asserted that Mr Laney did not suffer an injury under
s 4(a) and s 4(b) of the 1987 Act, they place in issue s 9A and deny liability for the s 60 expenses and weekly compensation. Additional portions of Dr Powell’s opinion are cited including that he found that “the current symptoms and clinical presentation are consistent with the natural history of the disease process”.
At the preliminary conference held on 17 October 2023 Ms Maiuolo, solicitor, appeared for the respondent and Ms McGlynn, solicitor, for Mr Laney. Ms Maiuolo advised that a s 4 dispute was not pressed and the issue is whether the ongoing symptoms are as a result of the injury and whether there is a material contribution to the proposed surgery.
However, at the hearing the respondent sought to dispute liability under s 4(a) and s 9A as well as the causal aspect of s 60 of the 1987 Act. I was advised by Mr Laney’s counsel that he was able to meet these areas of dispute and so the matter proceeded on the basis that these aspects were in dispute.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The arbitration hearing took place on 26 October 2023 on the MS teams platform. Mr Ross Hanrahan, counsel, instructed by Ms McGlynn, solicitor, appeared on behalf of Mr Laney, who was in attendance. Mr David Saul, counsel, instructed by Mr Marsh, solicitor, and
Mr Warren Mitchell from the insurer represented the respondent.
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) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence. Counsel made oral submissions which have been sound recorded.

FINDINGS AND REASONS

Relevant legal authorities and legislative provisions

The case has been framed by Mr Laney as coming within s 4(a) of the 1987 Act. In Rail Services Australia v Dimovski[1] Handley JA stated where a frank incident aggravated an underlying degenerative condition, it could properly be regarded as injury simpliciter within
[1] [2004] NSWCA 267, Dimovski.
s 4(a) of the 1987 Act.
While the respondent put in issue its liability under s 4(a), most of its submissions were directed to whether the applicant had discharged his onus of proof in relation to s 9A of the 1987 Act.
Section 9A of the 1987 Act provides:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (But this subsection does not limit the kinds of matters that can be taken into account for the purposes of the determination)--
(a) the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)the injury arose out of or in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
The Court of Appeal considered s 9A in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd[2] and found for employment to be a substantial contributing factor to the injury the causal connection must be “real and of substance”.
[2] [2009] NSWCA 324 Badawi.
Both counsel when dealing with causal aspect s 60 of the 1987 Act referred to Murphy v Allity Management Services.[3] At [57] of Murphy Roche DP stated, “the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the costs of that treatment is recoverable under s60 of the 1987 Act.” He added at [58]:
“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).”
[3] [2015] NSWWCCPD 49 Murphy.
Before considering the application the above principles to Mr Laney’s case it is helpful to briefly summarise the evidence before the Commission and the parties’ submissions.

Mr Laney’s statement

Mr Laney has provided a statement dated 22 June 2023.[4] He is aged 49. He refers to commencing employment with the respondent in 2008 as a groundsman initially on a casual basis and then full time. He refers to having undergone an arthroscopy on his right knee in 2016 and he made a full recovery from that. He says at the time of the work injury he considered himself fit and healthy and capable of handling the physical demands of his employment.
[4] ARD p 1.
At [13] he sets out details of the injury on 13 August 2021, that when exiting the buggy his knee buckled and twisted. He tried to grab hold of the vehicle to stop the fall. He says he sat in the buggy for a couple of minutes with a colleague and then attempted to walk into the gardener’s shed and his knee completely gave way causing him to fall on the ground onto a concrete slab.
He said he developed pain and swelling and his colleague drove him back to the office where he reported the injury to the Assistant Racecourse Manager. He said his son drove him to Nepean Hospital, he was experiencing excruciating pain in his knee and he could not put weight on it. He sets out his subsequent treatment in his statement.

Treating medical evidence

On 23 November 2019 Dr Valentin Tioukavin, general practitioner, records in his clinical notes that Mr Laney’s left knee was hurting yesterday, it locked and he was unable to extend it fully. In examination the doctor found the left knee had a mild effusion, he was unable to extend it fully and the doctor questioned if there was meniscal pathology. He requested an MRI scan.[5]
[5] ARD p 133.
The MRI left knee scan dated 28 November 2019 has the clinical details “inability to extend the knee, suggesting the possibility of an acute meniscal tear. 45 year old gentleman indicates the knee buckling when he was walking”.[6] It is also noted that he had an X-ray and ultrasound in 2013. The MRI scan report has detailed findings. The conclusion is that there are established degenerative changes, possibility of loose body formation, marginal osteophytic lipping, and significant cartilage loss in the medial compartment.
[6] ARD p 36.
On 6 December 2019 Dr Tioukavkin records that Mr Laney had seen Dr Olschewski for his left knee pain and there was bruising on the bone and lateral meniscal pathology for three months. He was to be reviewed in three months if he still was in pain, but he could go back to work.[7]
[7] ARD p 135.
Thereafter, Mr Laney continued to see the medical practice of Dr Tioukavkin many times in 2020 and into 2021 for medical conditions but there is no further mention of his left knee until 16 August 2021 when the doctor records “getting out of buggy and L knee gave way at work MRI scan”.[8]
[8] ARD p 148.

Dr Olschewski reported to Dr Tioukavkin on 5 December 2019 that Mr Laney had left knee symptoms since 23 November 2019 when he was walking down a hill and the knee suddenly buckled. He did not think much of it and continued to walk and finished work. The next day he noticed a sudden onset of severe pain over the front of his knee and he had difficulty weight bearing that day. Since then he has been taking Celebrex which seemed to be helping and the pain was slowly decreasing. The pain was over the front of the knee and was worse when he tried to fully extend the knee. The knee can feel unstable and was not locking. Swelling was settling. He had not been back to work due to the discomfort.
Dr Olschewski took the history that five years before Mr Laney had a work injury where he injured his meniscus and had an arthroscopy performed by Dr Viswanathan and following that he had done reasonably well but he was warned then he would need a knee replacement on that side at a point in his future.[9] In this report Dr Olschewski records his examination findings and details of the MRI scan of 27 November 2019.
[9] ARD p 227.
Dr Olschewski advised that he suspected that Mr Laney’s discomfort may be associated with bony oedema in the lateral tibial plateau and he hoped it would settle. He said the oedema may be secondary to impaction of the proximal tibia against the distal femur but he could not be sure as there was advanced arthritis and a meniscal tear also present. He said these may be contributing to Mr Laney’s discomfort. The doctor recommended he modify his activities and continue with the Celebrex as needed. He said he was hoping the symptoms would resolve over the next couple of months. He did warn that he might need knee replacement surgery in the future particularly if he has locking or mechanical symptoms.[10]
[10] ARD p 228.
The left knee MRI scan dated 23 August 2021 has the clinical history “injury, exclude any meniscal pathology”.[11] A meniscal tear was found. The radiologist made the following comments:
[11] ARD p 37.
“1.     Established degenerative osteoarthritic changes with possible loose body
formation and marginal osteophytic lipping in knee joint mainly involving
medial compartment of knee joint. Grade 2-3 chondropathic changes noted at
the medial compartment of tibiofemoral cartilage with significant cartilage
loss in the medial compartment.
2.     A complex degenerative meniscal tear in medial meniscus with flipped
meniscal fragment posteriorly with pseudo-extrusion.
3.     Mucoid changes in posterior cruciate ligament with unchanged
intrasubstance tear seen within it. Normal lateral meniscus. The rest of
the cruciate and collateral ligaments are intact.
4.     Myotendinous oedematous changes at the femoral attachment of the lateral
collateral ligament and popliteus tendon. Moderate amount of knee joint
effusion. No other significant abnormality noted.”
Records from Mr Georges Semaan from the Medical and Fitness Centre contain consultation notes from 1 September 2021 to September 2022 detailing the physiotherapy treatment undertaken by Mr Laney. The first entry contains a history of the injury, “13/8/2021 twisting injury to L knee, left leg gave way- causing instant instability. Only driving auto car, buggy, no repetitive work or lifting”.[12]
[12] ARD p 43.
Dr Olschewski reported to Dr Tioukavkin on 31 August 2021 about the injury on
[13] ARD p 229.
13 August 2021, that Mr Laney was at work riding in a cart/motorised buggy and he went to get out of the buggy and he twisted his knee and had immediate pain in his knee.[13] He sat down to rest and when he got up after taking two steps, the left knee collapsed and gave way and he fell. Dr Olschewski advised that Mr Laney’s symptoms had improved since the injury two weeks earlier on a background of chondral damage in the left knee which was not causing any impairment just prior to the injury. He recommended sedentary duties at work, Celebrex, a compression sleeve and ice. The doctor hoped the symptoms would settle but said an arthroscopy may be needed.
On 6 October 2021 Dr Olschewski reported that unfortunately Mr Laney’s symptoms have not improved and he has regular catching and locking several times a week. He recommended knee arthroscopy with partial meniscectomy and chondroplasty as required. He said at some time in the future he would need a knee replacement regardless of whether he has the arthroscopy but his symptoms at this time were not severe enough to warrant knee replacement surgery.
In his report dated 3 November 2021 Dr Olschewski stated that the case manager had approved the arthroscopy surgery and it was scheduled for 15 November 2021.[14] On
1 December 2021 Dr Olschewski reported that Mr Laney was recovering from the surgery but could return to work on sedentary duties.[15] He also referred him to physiotherapy.
[14] ARD p 233.
[15] ARD p 235.
[16] ARD p 238.
Dr Olschewski also reported that day to Dr Tioukavkin advising improvement in walking and ability to drive a manual car. He warned Mr Laney that he may have some permanent ongoing symptoms related to the exposed bone but it may take some time before symptoms become significant.[16]
On 29 December 2021 Dr Olschewski reviewed Mr Laney again and reported that Mr Laney had noticed a sharp anterolateral pain, sometimes when going from a sitting to a standing position and sometimes when walking. He ordered an X-ray prior to the next visit. He says he warned Mr Laney that he has degenerative changes in the knee, particularly in the medial compartment and to a lesser degree in the patellofemoral joint. The doctor was hoping for improvement but says the knee may not return to a completely normal level.[17]
[17] ARD p 242.
An X-ray of the left knee was performed on 14 January 2022 at Nepean Hospital as
[18] ARD p 40.
Mr Laney had presented with swelling and pain since 3am the prior night. Moderate to severe degenerative changes were noted in the medial and patello-femoral compartments of the left knee.[18]
On 18 January 2022 Dr Olschewski reported that in the arthroscopic procedure significant chondral changes were noted particularly in the medical compartment where eburnated bone was exposed on both the distal femur and tibial plateau. The doctor says following the procedure his mechanical symptoms seemed to have resolved and he was making slow progress. However, when he was back at work and standing on his feet for a significant part of the day he began to have increasing pain. He presented to Nepean Hospital at 3am on
[19] ARD p 245.
14 January 2022 in severe pain, they ruled out infection and he was sent home. The doctor advises that he believes that Mr Laney has progression of the degenerative changes in his left knee and there may be discomfort related to scar tissue around the lateral arthroscopy portal. He recommended hyaluronic acid injection. Dr Olschewski states he will require knee replacement but at 47 he is too young.[19]

Dr Tioukavkin states on his certificate of capacity dated 1 August 2022 that Mr Laney has capacity for some work from 7 August to 6 September 2022 for normal hours and days per week. However, he did complete the restrictions section relating to capacity for activities. He states lifting/carrying, standing tolerance and bending/twisting/squatting and driving ability is “as tolerated” and the pushing/pulling ability is 15kg. He refers to the treatment regime of analgesia, rest, physiotherapy and that Mr Laney is waiting for a left total knee replacement. In terms of diagnosis he records injury on 13 August 2021 of left knee strain/meniscal pathology, and left hand soft tissue injury. He states, “got out of buggy at work and L knee gave way”. In response to the question about relevant pre-existing factors he refers to “mild OA L knee”.[20]
[20] Reply p 2.
Dr Tioukavkin has provided a report answering various questions put to him by Mr Laney’s solicitors. He says he agrees with Dr Bodel and has not seen the report from Dr Powell.[21] The doctor states that the proposed surgery is reasonably necessary as other treatment modalities have failed. He comments on causation and states twisting his left leg getting out of the buggy caused the injury on a background of changes in the left knee as found on the MRI scan. He finds the employment is a substantial contributor not only to the acute injury but to the more chronic degenerative changes in the left knee.
[21] ARD p 33 and 248.
Dr Olschewski reported to Dr Tioukavkin on 16 March 2022.[22] This was after the left knee arthroscopy performed on 15 November 2021 when a partial meniscectomy, removal of loose bodies and chondroplasty was performed. The doctor advises at that time the compartment displayed eburnated bone on both the distal femur and tibial plateau. Serial
[22] ARD p 29.
X-rays had shown progressive narrowing of the medial compartment joint space.
Dr Olschewski says Mr Laney also had a hyaluronic acid injection on 4 February 2022, but he did not notice any significant improvement after this. The doctor reported that Mr Laney continues to have aching in his knee particularly over the anterior aspect of his knee if he is standing for 20 minutes or more. The doctor also notes he has been doing physical therapy without much improvement. The doctor changed his medication regime to include Mobic and requested X-rays to see if he would be a candidate for an unloader brace. The doctor advised that ultimately he would require a knee replacement but at 47 years he wanted to delay this as long as possible.
In the further report dated 13 April 2022 Dr Olschewski says the X-rays show the arthritis has predominant medial compartment involvement, although patellofemoral changes are present. He recommended a trial of an unloader brace as this will delay his inevitable knee replacement.[23]
[23] ARD p 253.
Dr Olschewski provided a further report dated 19 July 2022 noting that Mr Laney had been fastidious in wearing the unloader brace but he has not really noticed any significant improvement in his symptoms. The brace was causing significant irritation to his skin. He was taking Osteomol and Mobic but still has severe throbbing and pain which wakes him at night intermittently. The doctor says he is really struggling to manage his pain and symptoms. Dr Olschewski states:
“Justin has been having increasing pain and limited function ever since his work injury, which occurred on 13/8/2021. Following the injury Justin was diagnosed with a complex tear of the medial meniscus, along with extrusion of the meniscus and a flipped meniscal fragment. Chondral damage and wear was noted in the medial compartment. It should be noted that prior to Justin's fall on 13/8/2021, he was not having any symptoms in his left knee and he was able to carry out all his daily activities and work functions without impairment.
Justin went on to have knee arthroscopy on 15/11/2021. Significant chondral damage was noted involving the weight bearing surface of the distal medial femoral condyle and proximal tibial plateau where bone was exposed. Tearing of the medial meniscus was noted and a partial meniscectomy was performed. A loose body was also removed from the knee. Despite the arthroscopy, Justin has noted increasing progressive pain since that time. All further attempts at non-operative management have been inadequate.”[24]
[24] ARD p 32 and 254.
The doctor discusses the surgical options and risks, noting there is an increased risk he will need a knee revision in his lifetime, which is associated with poorer outcomes. The doctor gives reasons why a tibial osteotomy is contraindicated and advises he is seeking approval for a left total knee replacement.
On 19 July 2022 Dr Olschewski provided a quote for his fee for a total left knee replacement to be performed at Nepean Private Hospital of $4,230.[25] He notes an assistant, anaesthetist and hospital costs need to be added.
[25] ARD p 271.

Dr Powell

Dr Richard Powell, orthopaedic surgeon, provided his report dated 31 October 2022 to the respondent.[26] He examined Mr Laney on 8 September 2022. He records the history of the event on 13 August 2021 as involving Mr Laney stepping out of his buggy onto a blue metal surface, and he turned to access the back of the buggy, when he felt the left knee give way, accompanied by the development of lateral knee pain. He records that as Mr Laney went to walk, the knee gave way again and he fell.
[26] Reply p 5.
Dr Powell records that Mr Laney subsequently attended Nepean Hospital, Accident and Emergency Department, where he was assessed before being discharged home. He notes that he saw Dr Tioukavkin and was referred for an MRI scan which demonstrated advanced medial and moderate patellofemoral compartment osteoarthritis with a complex tear of the posterior horn and body of the medial meniscus.
Dr Powell refers to the fact that Mr Laney has a history of previous issues involving the left knee in that he suffered an earlier workplace incident around 2020 when the knee gave way whilst he was walking at work. He says on that occasion he was referred for an MRI scan which confirmed the presence of significant medial and patellofemoral compartment osteoarthritis. He was managed conservatively with physiotherapy and was off work for a few weeks before completing a return to work program and his symptoms settled.
Dr Powell said following the injury on 13 August 2021 Mr Laney was referred to
Dr Olschewski who performed a left knee arthroscopy, chondroplasty, removal of loose body and partial medial meniscectomy, followed by physiotherapy. Dr Powell notes that there was initial improvement following this treatment, but subsequent deterioration. He records that
Dr Olschewski then arranged a viscosupplementation injection and a trial of an unloading brace. He says Mr Laney has been able to return to work on light duties, working normal hours.
Dr Powell sets out Mr Laney’s current symptoms as involving a gradual deterioration in the left knee with intermittent pain over the anteromedial and anterolateral aspect of the knee with swelling and clicking. The pain was described as being typically aching in character with sharp exacerbations. Mr Laney reported instability, but no locking and he has stiffness and restriction in range of motion and the knee catches.
In addition to the treatment referred to earlier it is noted he does a home exercise program and takes anti-inflammatories and Panadol.
Dr Powell in his examination found there was no suggestion of overreaction or exaggeration. He found a markedly antalgic gait with a shortened stance phase on the left side. He had a flexion deformity of 15° and flexion was to 125°. The patella tracked centrally in association with some coarse crepitus and the Clark’s test was mildly positive. He found tenderness to palpation along the medial joint line and varus loading of the medial compartment into extension reproduced his pain. He also found medial ligament pseudolaxity and the cruciate ligaments were intact.
Dr Powell sets out the MRI scan reports dated 27 November 2019 and 21 August 2021 and the X-ray of 14 January 2022.
Dr Powell provides his diagnosis that the injury to Mr Laney’s left knee on 13 August 2021 occurred when stepping out of his buggy and resulted in aggravation of advanced medial and patellofemoral compartment osteoarthritis. Dr Powell responded in relation to a question “Do you believe Mr Laney’s condition is work related?”;
“Mr Laney is suffering from longstanding degenerative changes involving the
medial and patellofemoral compartments of the left knee. The workplace
incident that occurred on 13 August 2021 is sufficient to have caused a
temporary aggravation of that pathology. Any aggravation of his pre-existing condition sustained in the workplace incident was relatively minor, noting the mechanism of injury, and the effects would have settled by now. His ongoing symptoms and associated functional limitations are entirely consistent with the natural history of the advanced degenerative disease process involving the left knee. I do not believe his current condition remains related to any injury sustained in the course of his employment.”
Dr Powell added that the pathology identified on the imaging dated 13 August 2022 is longstanding and pre-existing and was well established at the time of the scan in 2019. He found that:
“The initial injury occurred whilst at work and would be considered to represent a substantial contributing factor in the aggravation of the pre-existing degenerative disease process. However, any aggravation related to that incident would have settled by now. I do not believe Mr Laney’s employment continues to represent the main contributing factor in the aggravation of the pre-existing degenerative disease process involving the left knee.
Mr Laney’s current symptoms and clinical presentation are consistent with the natural history of that disease process. It is likely his left knee would have been symptomatic at this stage irrespective of any contribution from the relatively minor workplace incident that occurred in August 2021.”
Dr Powell’s view as to treatment options for Mr Laney is that the treating surgeon has discussed all appropriate treatment options and he says the options are to continue with conservative management for as long as possible or proceed to surgery, most likely in the form of a total knee replacement.

Dr Bodel

Dr Bodel, orthopaedic surgeon, provided a medico-legal report dated 12 December 2022 for Mr Laney.[27] Dr Bodel has a history of the incident on 13 August 2021 consistent with
[27] ARD p 20.
Mr Laney’s account in his statement. He lists Mr Laney’s current complaints as anteromedial and anterolateral knee pain in both knees, the left worse than the right and retropatellar discomfort aggravated by attempting to kneel, squat or climb or go up or down stairs or ladders. He sets out his examination findings.
Dr Bodel comments on the left knee MRI scan dated 27 November 2019. He says:
“it shows evidence shows evidence of moderate to severe osteoarthritic change in the medial compartment of the knee and some mild changes in the lateral compartment as well. The flare up of pain that occurred at that time settled with physiotherapy but the injury at work on 13 August 2021 did not.”
Dr Bodel disagrees with Dr Powell’s opinion and says at the very least the episode of work injury on 13 August 2021 and the nature and conditions of his work over a period of many years, at least from 2008 onwards, has caused aggravation etc of the disease process in the left knee. He says it is the post-traumatic osteoarthritis in the knee which warrants the surgical procedure as treatment for the work-related injury. He states the injury is the aggravation etc to the disease process and a probable tear of degenerate medial meniscus that occurred on 13 August 2021 and as a result of the nature of the work in general.
Dr Bodel states he is satisfied that employment is the substantial contributing factor to the overall injury. He adds that the injury on 13 August 2021 is the main contributing factor by way of aggravation etc of the disease process. He says the work-related injury has not resolved and warrants the knee replacement.
The doctor opines that the total knee replacement is the most appropriate treatment protocol for the injury to the left knee. He thinks it would be effective to improve Mr Laney’s condition and there is no practical alternative, and he has exhausted the possibilities of non-invasive treatments with medication, physiotherapy and is still in quite significant pain.

Submissions

The respondent does not dispute the incident on 13 August 2021 occurred. It was submitted that the dispute relating to “injury” really centres on s 9A of the 1987 Act. Mr Saul argued that nothing in the employment gave rise to this injury, there was nothing peculiar about that event, that the applicant was alighting from the buggy, his knee gave way, and he twisted it. The factors in s 9A (2) were discussed. It was submitted that sub-paragraph (a), the time and place injury, have no bearing on the injury, noting that s 9A provides that just because an injury occurs in the course of employment does not mean s 9A is satisfied.
He referred to sub-paragraph (b), the nature of work and (c) the duration of employment and submitted they were of no relevance.
The respondent submitted that sub-paragraphs (d) and (e) were relevant, as there was the probability that the injury would have happened at same time of Mr Laney’s life and the state of his health before injury is also significant. The respondent submitted that Mr Laney had a significant problem in the left knee going back some time and referred to the issues recorded by his general practitioner on 23 November 2019 and that this pathology led to the MRI scan and referral to Dr Olschewski. Mr Saul read out the medical evidence from 2019, which I have summarised above, and the reference to the injury five years earlier. Mr Saul submitted that this evidence shows that the symptoms and incident in 2019 are almost identical with what has occurred on 23 August 2021. He asserted in both incidents there was no particular event to cause the buckling and falling and the investigations in 2019 revealed extensive degenerative issues in Mr Laney’s knee.
The respondent submits that Mr Laney in these proceedings is only relying on the 2021 incident and that when one takes into account these factors from 2019, Mr Laney cannot discharge his onus of proof to establish that employment was a substantial contributing factor to the 2021 injury. Reliance was place on the decision in Badawi.
It was submitted, to reinforce this submission the first report from Dr Olschewski in 2021 has the history that Mr Laney went to get out of the buggy, and he twisted his knee whereas
Mr Laney says he went to get out and placed his knee on the ground and it buckled, and he had immediate pain.
Mr Saul submitted that if the respondent’s s 9A argument fails, there is an issue that the injury in 2021 is not a material contributing factor to the need for knee replacement. He argues that the 2021 injury did not cause any additional pathology to cause the need for a knee replacement. He submits that Dr Olschewski hoped that Mr Laney’s symptoms would resolve but he warned that he would need a knee replacement in the future because of the advanced degenerative changes in the knee, and that they were present in the 2019 MRI scan.
It is submitted that Dr Bodel does not take a history about the 2019 incident, but he refers to an arthroscopy on the right knee seven years ago, which is unclear from Dr Olschewski’s report if it was the left or right knee. However, Mr Saul stated that Dr Bodel did have the 2019 MRI scan which he acknowledged that it showed degenerative changes, yet Dr Bodel says the symptoms from the 2019 injury resolved. It is submitted that Dr Bodel has not engaged with the two MRI scans as he does not offer an opinion about what has changed from the 2019 scan to the 2021 scan.
Mr Saul submits that Dr Bodel includes the nature and conditions of his work from 2008 as contributing to the disease process, however, in the current proceedings the “injury” is presented as a frank injury case under s 4(a) of the 1987 Act. He argues that Mr Laney cannot succeed in proving the s 4(a) injury is the material cause of the need for the knee replacement. He submits Dr Bodel has not engaged with what happened when Mr Laney got out of the buggy.
The respondent argues that Mr Laney has not demonstrated there has been a change in pathology, referring to authorities such as Jaffarie v Quality Castings Pty Ltd[28] and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd.[29]
[28] [2018] NSWCA 88 Jaffarie.
[29] [2014] NSWCA 264 Bindah.
The respondent relies upon the opinion of Dr Powell, which has been set out in detail above.
Mr Hanrahan disagreed with the respondent’s submissions in relation to s 9A, that the place of injury is not relevant. He argues that Mr Laney has set out where he was working at the time of his injury. He says the buggy had a load on the tray and he drove to the gardener’s compound which had a base of loose blue metal. It was submitted that this played a part in the injury. He said the task Mr Laney was performing was to empty the tray of the buggy and this would have involved twisting. He says the frank incident involved a tearing and aggravation of the underlying pathology and it was this event which did this. He submitted that Dr Powell does not deal with whether this injury would have occurred at the same time in Mr Laney’s life.
He says the significant point is that after the 2019 injury Mr Laney could keep working and did not need the additional treatment that he has undergone, whereas after the 2021 injury his work was affected.
Mr Hanrahan submitted that Dr Bodel, when referring to Dr Powell, could see there was the 2019 injury, so this negates the respondent’s argument that he was not aware of it.
Mr Hanrahan submits that Dr Bodel found the injury is aggravation etc of the disease process and in addition there was a probable tear of the medical meniscus. Mr Hanrahan argues that the instability of the blue metal surface contributed to Mr Laney falling.
It was submitted that Dr Powell was asked in question 10 to make reference to any restrictions and Dr Powell recommends avoiding activities which involve prolonged periods of standing and walking. Mr Hanrahan submitted that there is a real connection to work and the probability this injury would not have occurred except for this incident at work.
Mr Hanrahan argued that when the respondent made submissions it referred to “the” material contribution to the need for surgery whereas authorities such as Murphy found there can be multiple causes. It was submitted that Mr Laney acknowledges there are other factors but the effect of this aggravation caused in the 2021 injury was that the symptoms continued, unlike after 2019 incident.
Mr Hanrahan submitted that the arthroscopy procedure was paid by insurer and so they conceded the need for arthroscopy was due to injury in 2021. He argued that the arthroscopy did not alleviate the symptoms and so is necessary to do the total knee replacement surgery. He submits that even though Dr Olschewski referred in 2019 that it was likely in future that Mr Laney would need a knee replacement, it was the 2021 injury that made it necessary now. Mr Hanrahan submitted that Dr Bodel’s view is that a tear occurred and there was acceleration of the underlying disease process. Mr Hanrahan stated that Mr Laney was probably vulnerable to this type of injury.
Mr Hanrahan submitted that Dr Bodel did consider the prior radiological reports, but that the Commission cannot determine that there is no change in the pathology on the two MRIs. He argues that this necessitates an interpretation by a specialist. He says that Dr Bodel also looked at the alignment photographs and these are of importance to the treating surgeon as to how to approach the surgery in this case.

It was submitted that Dr Olschewski has come to the view that the time has come to do the total knee replacement, that he has tried all forms of treatment, brace, injections, medication, and physiotherapy. Mr Hanrahan submits that Dr Olschewski says prior to 2021 injury
Mr Laney was able to carry out all his duties and he has suffered increasing progressive pain since 2021. Mr Hanrahan noted that Mr Laney has returned to work and is doing suitable duties and so he is highly motivated, so he should be given this treatment so he can perform the full extent of his duties.
Finally, Mr Hanrahan submitted that the general practitioner had a history of twisting the knee and then Mr Laney again getting up and sustaining injury. Mr Hanrahan says the evidence establishes that the employment was a substantial contributing factor to the acute injury and chronic knee condition. He argues that the injury has not resolved and that it gives rise to the need for a total knee replacement at this stage.
The respondent made no submissions in reply.

Determination

Given the respondent still places in issue s 4(a) of the 1987 Act it is necessary that I deal with that first. There was an aspect of Mr Hanrahan’s submissions that I cannot accept. He submits that the fact that when Mr Laney alighted from the toro workman buggy at work on 13 August 2021, and did so on a blue metal ground cover, was a causative factor to him sustaining the injury. However, the problem with this argument is there is no evidence from Mr Laney or any of the doctors to support this was a causative factor. Mr Laney does in his statement refer to the gardener’s section as containing blue metal flooring, but he does not say he slipped on the blue metal or because it was a loose surface it caused him to fall.
Mr Laney states:
“Upon exiting the buggy, my knee buckled and twisted. I tried to grab hold of the workman to stop the fall. I sat in the buggy for a couple of minutes with a colleague. I then attempted to walk into the gardeners shed and my knee completely gave way causing me to fall to the ground onto the concrete slab.”
In Shao Wen Zheng v Guo Yong Yang & Ors[30] Roche DP stated at [81]:
“Where direct proof is not available it is possible to draw an inference from known facts. However, those facts must do more than ‘give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture’ (per Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (unreported, High Court, 27 April 1951), cited by Williams, Webb and Taylor JJ in Holloway v McFeeters [1956] HCA 25: 94 CLR 470 at 480-481). The law ‘does not authorise a court to choose between guesses’ (per Dixon CJ in Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 305).”
[30] [2008] NSWWCCPD 144, Zheng.
In this matter while it may be a matter of common knowledge that blue metal is a loose surface and even that people may find it difficult to achieve a sure footing on it, I find I cannot draw an inference that this occurred in Mr Laney’s case. I find this would just be conjecture as Mr Laney has not said that in his statement nor told this to any of the doctors.
Dr Tioukavkin takes a history that is brief, but he does not refer to blue metal nor does he in his undated report to Mr Laney’s lawyers. Dr Olschewski on 31 August 2021 records the history about the injury on 13 August 2021, that Mr Laney was at work riding in a cart/motorised buggy and he went to get out of the buggy and he twisted his knee and had immediate pain in his knee.[31] He sat down to rest and when he got up after taking two steps, the left knee collapsed and gave way and he fell. He does not refer to the blue metal.
[31] ARD p 229.
Dr Powell has the history that Mr Laney stepped out of his buggy onto a blue metal surface, and he turned to access the back of the buggy when he felt the left knee give way accompanied by the development of lateral knee pain. He adds that as Mr Laney went to walk his knee gave way again and he fell. So, it is not evident from this history that the blue metal surface was the cause.
However, Dr Powell’s history about the earlier work event in 2019 is that his knee gave way while walking at work. I find it is significant that in relation to the August 2021 incident Dr Powell has the history that Mr Laney got out of the buggy and turned to access the back of the buggy when he felt his knee give way. So, this 2021 injury was not the same as in 2019, when he was simply walking and the knee giving way.
Mr Laney had not provided this detail in his written statement about him exiting the buggy and turning, but I find that Dr Powell has taken a detailed history and has mentioned this. He also says he found Mr Laney to be compliant and cooperative throughout the taking of the history and examination and there was no suggestion of overreaction or exaggeration. Therefore, I find Dr Powell’s history of the detail of the incident is more likely than not on the balance of probabilities to be an accurate account of the circumstances of the injury.
Dr Bodel’s history is almost a mirror image of Mr Laney’s statement and does not have this detail, nor does it implicate the blue metal flooring, so it does not assist me in understanding the minutiae of the incident.
In terms of s 4(a) of the 1987 Act, the only other submission the respondent seemed to be making was that Mr Laney has not established that the pathology changed from that evident in 2019. The respondent was critical of Dr Bodel in failing to compare the 2019 MRI scan findings with those of 2021. It is true that the doctor does not undertake such a comparison. He only lists the MRI scan of 27 November 2019 under the heading investigations. However, in his history he does refer to an MRI scan being taken after the August 2021 injury and that Dr Olschewski performed a left knee arthroscopy on 15 November 2021 and to the arthroscopic photographs. It would have been helpful had Dr Bodel indicated that he had actually viewed both scans and commented on them, but I find this is not fatal to Mr Laney’s case as there is extensive evidence from Dr Olschewski, the treating orthopaedic surgeon.
The other criticism of Mr Laney’s case is that Dr Bodel found the injury included a personal injury on 13 August 2021, being aggravation etc of the disease process in the knee and probable meniscal tear, but also the injury is as a result of the work in general. Whereas
Mr Laney’s lawyers have not framed his case this way. They have only relied on a personal injury on 13 August 2021. I have referred to Dimovski earlier in these reasons, that an injury which aggravates an underlying disease condition can still be regarded as an injury under
s 4(a). Even though the Commission is not a court with strict pleading, nonetheless the way a case is framed is important. I consider it would be an error to rely upon Dr Bodel’s opinion about causation when he clearly also implicates a wider type of injury than relied upon in these proceedings.
However, there is considerable evidence from Dr Olschewski. Because Dr Olschewski has treated Mr Laney for many years, both after the 2019 and the 2021 incidents and also performed a left knee arthroscopy, I consider he is in the best position to judge what injury was sustained in 2021. In his report dated 19 July 2022 to Dr Tioukavkin he says following the injury on 13 August 2021 Mr Laney was diagnosed with a complex tear of the medial meniscus, along with extrusion of the meniscus and a flipped meniscal fragment. In the report of 5 December 2019, the doctor did note there was a complex meniscus tear present.[32] In both 2019 and in this 2022 report Dr Olschewski did refer to there being chondral damage and wear in the medial compartment. However, in the report of
[32] ARD p 228.
19 July 2022 he adds that prior to 13 August 2021 Mr Laney was not having symptoms in his left knee and was able to carry out all his daily activities and work functions without impairment. This change in functional impairment in the knee, I find is significant.
Dr Olschewski’s history that Mr Laney was not having symptoms in his left knee prior to the injury on 13 August 2021 is borne out by the records of Dr Tioukavkin because Mr Laney continued to see that medical practice many times in 2020 and into 2021 for medical conditions, but there is no further mention of his left knee until 16 August 2021 when the doctor records the work injury on 13 August 2021.
The respondent’s argument centres on the lack of evidence as to the exact nature of “the sudden or identifiable pathological change” which was discussed as constituting “injury” in cases such as Castro v State Transit Authority (NSW).[33] Dr Olschewski places emphasis on the functional impairments or effects of the injury on 13 August 2021 to conclude there was an injury on that day. Mr Laney immediately felt pain, overnight developed significant swelling and shortly thereafter had restriction of movement in the knee, which I find are consistent with an injury having occurred. Dr Powell in his diagnosis states “he sustained an injury to his left knee in a workplace incident when stepping out of his buggy on 13 August 2021. This resulted in aggravation of advanced medial and patellofemoral compartment osteoarthritis.” Dr Powell in answer to question 4 opines that the incident on 13 August 2021 was sufficient to have caused a temporary aggravation of that pathology but he states the effects of the injury would have settled by the time of him reporting.
[33] [2000] NSWCC 12; (2000) 19 NSWCCR 496, Castro.
Dr Powell’s opinion supports a finding that injury under s 4(a) of the 1987 has been established, particularly when considered in light of Dr Olschewski’s findings. Just because a precise pathological change on the MRI has not been identified by the doctors, does not mean Mr Laney has failed to establish a s 4(a) injury.
Turning to consider the application of s 9A of the 1987 Act, I find that the respondent’s analysis is flawed. I accept the applicant’s submissions, except for the submission about the blue metal. Mr Hanrahan also submitted it was the turning to the back of the buggy that was causative of injury as this involved twisting action of the left knee. That twisting occurred is a fact I accept, supported by the history of Dr Olschewski in his report dated 31 August 2021. This was 18 days post injury. He says Mr Laney went to get out of the buggy, and he twisted his knee. Mr Semaan, physiotherapist, also refers to it as a twisting injury and this was an early history.
Section 9A (2) requires me to take into account the following factors:
“(a) the time and place of the injury”
The respondent submitted this was irrelevant whereas Mr Hanrahan submitted it was relevant because of the blue metal. I have rejected the submission about the blue metal. I note the injury occurred at work. However, I am mindful of s9A(3).
“(b) the nature of the work performed and the particular tasks of that work”
The respondent submitted this had no relevance whereas Mr Hanrahan submitted it was relevant because Mr Laney was getting out of the buggy and that involved twisting. I accept this is a relevant factor.
“(c) the duration of the employment”
I accept the respondent’s submission that the duration of employment is not relevant the way the case was framed.
“(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”
The respondent submitted that this type of injury was bound to occur because it had in the past and this incident was just another example of the underlying degenerative condition manifesting itself. Mr Hanrahan submitted to the contrary. I find the fact that Mr Laney was alighting from the work buggy, with the chemicals on the back was a very material fact in the occasioning of the injury. I have found that Dr Powell’s history is more likely than not to be accurate that Mr Laney was twisting to the back of the buggy when his left knee was injured. I find it is highly significant that this incident was not like the 2019 incident when he was just walking. I find it was the twisting that caused the 2021 injury. I find it was this employment that caused the injury.
“(e) the worker’s state of health before the injury and the existence of any hereditary risks”
Clearly the state of Mr Laney’s prior knee condition is relevant but as Dr Olschewski noted he had not had ongoing problems since 2019 until this twisting incident at work in 2021.
“(f) the worker’s lifestyle and his or her activities outside the workplace”
I do not consider that his lifestyle of activities outside the workplace are relevant.
Taking into account these factors I consider that s 9A is satisfied as the employment was a substantial contributing factor to the injury as it was the twisting action getting out of the work buggy and turning to the back of the buggy that caused the injury to the knee on
13 August 2021. I find the causal connection with his employment was real and of substance: Badawi. Of course, the underlying condition was also a factor but given the settling of symptoms in the left knee during 2020 and until 13 August 2021 I find that it does not detract from my finding that the employment was “a” substantial contributing factor to the injury.
The final issue for me to determine is whether s 60 of the 1987 Act is satisfied. In Murphy it was stated that there can be multiple causes for treatment with the injury being one that materially contributes to the need for the surgery. The test of causation which was applied in Murphy was that in Kooragang Cement Ltd v Bates,[34] a commonsense evaluation of the causal chain. The respondent argues that Dr Olschewski had envisaged that Mr Laney would need a left total knee replacement before the injury on 13 August 2021. It also argues that the need for the surgery now is caused by the progression of the underlying degenerative changes in Mr Laney’s knee. The respondent relies on the opinion of Dr Powell that the effects of the 2021 injury have ceased.
[34] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796, Kooragang.
Mr Laney contends that the effects of the injury have not ceased and that the occasioning of that injury has brought forward the need for the surgery, and that even though Dr Olschewski had discussed surgery before the injury the fact was that Mr Laney’s 2019 symptoms settled to the point where he could work and did not need medical treatment. I accept this submission. As I have stated previously, the records of Dr Tioukavkin throughout 2020 and in 2021 up to 16 August 2021 show that Mr Laney attended on multiple occasions and there is no left knee complaint recorded. This can be contrasted with the situation after the 2021 injury where within three months Dr Olschewski, with the insurer’s approval, performed the arthroscopy procedure, he then tried injection treatment and the unloader brace. I do not accept Dr Powell’s view that the effects of the August 2021 injury had ceased. I do not accept it was a minor injury. Mr Laney had a vulnerable knee with significant degenerative changes however he was able to continue to work and did not have the raft of symptoms in the year and a half before the injury that he has experienced since.
Undoubtedly the underlying degenerative state of Mr Laney’s knee plays a part in the need for surgery but I find the 2021 injury is a material cause of the need for surgery as it has brought it forward. The fact is that even though Dr Olschewski predicted Mr Laney would need surgery in the future, he did not want to consider the same at Mr Laney’s age and then his 2019 injury settled. It was the persisting issues after the 2021 injury that has lead
Dr Olschewski to recommend surgery, notwithstanding Mr Laney’s age. Dr Olschewski has not rushed into recommending surgery and he has tried alternative treatment.
I am satisfied that the 2021 injury has resulted in and materially contributed to the need for surgery.
There is no real contest that the surgery proposed by Dr Olschewski is reasonably necessary. I find that Dr Olschewski is best placed to judge the reasonable necessity for the total knee replacement because he has treated Mr Laney for many years and in his reports he has set out the range of treatments he has undertaken including the arthroscopy, injection, unloader brace, medication and physiotherapy. It is the fact that Mr Laney is young to have a total knee replacement because it can be expected he will need a further replacement in his lifetime but Dr Olschewski has taken this into account and nonetheless proposes the total left knee replacement. Applying the principles in Diab v NRMA Ltd,[35] I find that the proposed surgery is reasonably necessary treatment.
[35] [2014] NSWWCCPD 72, Diab.
It follows from the above findings that I find that the claim for the proposed total left knee replacement is reasonably necessary treatment as a result of the injury on 13 August 2021 and I order to pay the costs of the same, and ancillary treatment costs, under the workers compensation gazetted rates.

[2024] NSWPIC 51

9 February 2024