Lee v Racing NSW
[2023] NSWPIC 520
•3 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Lee v Racing NSW [2023] NSWPIC 520 |
| APPLICANT: | Glenn Lee |
RESPONDENT: | Racing NSW |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 3 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for surgery for jockey/horse trainer; whether injury is a personal or disease injury pursuant to section 4; whether falls off horses should be categorised as personal injuries; whether principle in Rail Services Australia v Dimovski applicable; Held – facts of nature of applicant’s employment indicated that section 4(b) was applicable; applicant’s employment analogous to that of a shearer; award for applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. The claim for weekly payments is discontinued. 2. The respondent will pay the cost of and associated with the cost of and incidental to a right hip replacement and/or right hip resurfacing as proposed by Dr Rooney and Dr Farah. |
STATEMENT OF REASONS
BACKGROUND
Glenn Lee, the applicant, brings an action against Racing NSW, the respondent, for a declaration that proposed surgery is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the proposed surgery is reasonably necessary.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
On 30 August 2023, Mr Luke Morgan appeared for the applicant instructed by Mr Tim Driscoll of Messrs Bilbey Poulden & Costello solicitors. Mr David Saul of counsel appeared for the respondent, instructed by Mr Glenn Dolan from HWL Ebsworth Lawyers. Mr Peter Sweeney appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents (ALD) By the respondent dated
21 August 2023.
FINDINGS AND REASONS
Amendments and discontinuance
At the outset of the hearing, Mr Morgan discontinued the claim for weekly payments.
Mr Morgan also amended without objection the claim for medical, hospital and related expenses contained in the ARD form by pleading under, “details of further treatment”, “total right hip replacement and/or incidentals and/or right hip resurfacing, as proposed by Doctors Rooney and Farah.”
Evidence
Mr Lee made a statement dated 21 March 2023. He was born in 1971 and he spent most of his working life around horses. He was an apprentice jockey in Queensland in 1987, and then until 1994, a senior jockey when he had to retire from race riding.
He then worked as a stable hand/track worker and track work rider in Queensland, moving to New South Wales in September 2011, where he worked for the respondent as a track work rider. He enlisted and was accepted into the Royal Australian Air Force in November 2012, but applied for a discharge in August of 2013, saying, “military life was not fit for me”.
At [9] of his statement, he said he had a few prior workplace injuries by way of broken wrists and bones, but no right hip injuries. He said, “as you can appreciate, riding horses day in day out is a dangerous way to make a living.”
He then described his duties as a stable hand. He said he was required to engage in a labour-intensive business, which resulted in his having a series of falls off horses. His duties involved riding racehorses in the crouched position of a jockey, educating young horses, riding in jump-outs, barrier education and daily training of canter and gallop work. He said his duties were primarily riding working 4.00am to 9.00am six mornings a week, riding roughly ten to twelve horses.
At this point of his statement, Mr Lee referred to himself in the third person. At [14] he said:
“These duties required him to engage in labour intensive work, and have a series of falls off horses, landing on his right hip to which has resulted in an injury to which he requires surgery.”
(as written)
At [15] Mr Lee returned to the first person and said he was working for Fredman Brothers Racing from 23 June 2020 until October 2021 “whilst I was still on workers compensation”. Mr Lee did not enlighten the reader as to what had caused him to be on compensation, but that information was later supplied by his medical practitioners, as will be seen. He said that since commencing work with the respondent, he had fallen numerous times from horses without any major injuries but sustaining, “niggling injuries to my right hip, amongst other body parts.”
He said he would fall on his right side a few times. He thought he had just a bit of bruising or muscle soreness in his right hip and groin area.
He said one morning when he dismounted, the pain was unbearable. He said:
“[18] I landed right leg first and felt an extremely sharp pain in my right hip, causing me to have to lay down until the pain subsided.”
Mr Lee said that this occurred more frequently over the following week and caused him such distress that he would nearly be in tears.
He said that he was right-handed and had to swing his right leg to land on the ground from a height of about 6ft, and he found the pain that this caused to be debilitating.
He said that pain would subside after a few minutes and he would keep working. After about eight weeks, he went to see Dr Khan, his general practitioner (GP).
Dr Khan arranged for a scan to be taken and referred Mr Lee to Dr John Rooney, with whom he underwent surgery, which the medical evidence demonstrated to be an arthroscopy on
21 June 2021.Mr Lee returned full duties in early November 2021 but was still having medical treatment.
He said he was aware of a dull ache in his right hip in the area of the surgery when riding and getting on off the horses, but his performance became affected by the work he was doing, particularly, he said, after he had three significant falls which required time off and for which compensation was paid. These falls were referred to in the insurer's evidence. Mr Lee said that one occurred in February 2022, when he hit the side of the starting barriers when exiting and fell from the horse. The saddle was loose, causing him to fall heavily on his right side hip and back.
In June 2022, the horse he was riding reared and spun around quickly, and Mr Lee landed on his right leg and twisted his right shoulder.
In September 2022, when his horse stumbled, Mr Lee went over its head, landing on his right shoulder and right side. Mr Lee said:[1]
“29. Over the course of roughly 1 year, the pain and discomfort started to increase whilst I continued with my pre-injury work. It became so bad that I had to cease all work on the 12th of December 2022 until the 18th of February 2023 while initially waiting for hip Resurfacing. After this time resting the pain eased and I have been able to return to work one some restricted duties. I was able to obtain suitable work to perform restricted riding duties.”
[1] ARD page 4.
Mr Lee said that his right hip injury affected him to the extent that he had trouble mounting and dismounting horses because he had to swing his right leg over, and that he had tried every therapy method that had been recommended to him and wished to proceed to surgery.
Dr Rooney
Dr John Rooney, orthopaedic surgeon at St Vincent's Clinic, supplied a series of reports which were addressed to respondent and copied into Mr Lee's GP.
On 18 May 2021, Dr Rooney reported to the respondent copying Dr Khan, to whom the report appears to actually have been written. Dr Rooney noted the referral to him and took the following history:[2]
“During his racing career he has had a number of falls. both when training and when on the racecourse itself, thankfully with minimal issues. Approximately 6 weeks ago or more he started to develop right groin pain. The pain was located in the right groin but also diffusely across the trochanteric and the buttock area. It was sharp in its character and the severity was pronounced at 9/10 on a VAS. On closer questioning. Glenn reports the issue is most pronounced when getting up in the stirrups off the back out of the saddle and then getting off the horse, landing on his good left leg where normally he would land on both legs equally. He had to develop that protective manoeuvre because of the pain. He has also noticed a pain in bed of a nighttime. The pain is aggravated by twisting movements and also walking, particularly the first 1I0-15m after he has landed and then he tends to settle to some degree, but the pain will still be with him for a time. It is relieved by rest and the avoidance of the before-mentioned activity. For pain relief he has been taking ibuprofen and Voltaren Rapid. He denies any stiffness, giving way but some clicking. He is not able to ride a horse, he stopped riding because of the pain and it is also provoked getting in and out of a car.”
[2] ARD page 19.
On 1 June 2021 Dr Rooney stated that he had seen the investigations in the form of an MRI scan taken on 17 May 2021 and reviewed for a second opinion on 28 May 2021 by
Dr Sebastian Fung.Dr Rooney noted that the MRI scan indicated a tear of the anterior superior labrum and recommended that the right hip laboral tear would benefit from a right hip arthroscopy. This subsequently took place.
On 13 July 2021, Dr Rooney reported again[3]. He said it was two weeks from the subsequent right hip arthroscopy and debridement of the labral tear and chondroplasty.
[3] ARD page 24.
On about 29 June 2021, Dr Rooney reported that Mr Lee had noticed an improvement following the procedure, but Dr Rooney recommended against going back to full duties, even though Mr Lee stated he was “completely pain free”. Dr Rooney suggested light duties in the stable would be neither light nor a temptation to ride that Mr Lee would be able to resist.
In September 2021, Dr Rooney noted a definite improvement in symptoms and range of movement but expressed some disappointment at the physiotherapy. He recommended a different physiotherapist and that he return to light duties, noting that Mr Lee was “very hungry to do some work”.
When Dr Rooney saw Mr Lee again on 7 December 2021, Mr Lee expressed his satisfaction with the outcome of the arthroscopy, saying that the sharp pain from his right hip was gone and it was now just a dull ache.
Dr Rooney noted that Mr Lee had been back at work riding 5 hours a day, which Dr Rooney said, “I cannot even imagine”, but noted that Mr Lee had an ache which was tolerable.
Dr Rooney recommended taking Voltaren Rapid to deal with the hip. He said:
“Clinically today the right hip is not particularly irritable, and it is nowhere near as irritable as it was when I first met Glenn. There is a palpable clunk, which has been present all along and is unchanged but the right hip when taken through a (range of motion”, is no longer as irritable by perhaps even 80%.”
On 14 December 2022, Dr Rooney reported again - a year or so later. He had available a fresh MRI scan and CT of the hip arthrogram and said that they revealed a “continual progression of deterioration of a degenerative process within his right hip joint”, noting that there was now full thickness articulate cartilage loss.
Dr Rooney noted that there was some pain relief with the anaesthetic during the arthrogram, but he said:
“The issue is a degenerative process of the right hip. Normally, I would recommend Glenn now consider surgery in the form of degenerative process of the right hip replacement. But given his high performance level, he does fall into the category of consideration for hip resurfacing.”
Dr Rooney therefore recommended that the matter that Mr Lee be referred to Dr Sami Farah, orthopaedic surgeon who was experienced in hip resurfacing.
Dr Farah
Dr Sami Farah, orthopaedic surgeon, reported on 20 December 2022.[4] Dr Farah took a history that Mr Lee fell at the track 1.5 years ago, “and had immediate discomfort in the right groin, which was mild at the time.” Dr Farah noted that the discomfort got worse over the next three to four months and made it difficult for him to swing his right leg off his horse. He noted the arthroscopy undertaken by Dr Rooney and said,
“since that time, the degenerative changes have progressed and he required a corticosteroid and local anaesthetic injection in August 2022, obtaining temporary relief from the local anaesthetic. Mr Lee started limping in November 2022 and started using a cane in his left hand to mobilize three weeks ago. He has had to give up horse riding altogether about a week ago because he is unable to walk at the end of a long day “after riding twelve horses…..”
[4] ARD page 33.
Dr Farah conducted an examination and noted investigations that have been carried out on
7 December 2022. He found that “there were no contra-indications to hip arthroplasty, noted.”Dr Farah thought that Mr Lee was quite “significantly symptomatic” from his right hip arthritis, which was affecting his lifestyle. He said that Mr Lee understood that he had already had optimal operative and arthroscopic management, but that his hip symptoms had continued to deteriorate.
Mr Lee also understood the difference between conventional total hip arthroplasty and total hip resurfacing arthroplasty, and that hip resurfacing had an additional number of contra-indications over conventional hip arthroplasty.
Dr Farah said:
“I have explained to (Mr Lee) that to fulfill the criteria for hip resurfacing, he would require ephemeral head diameter greater than or equal to 50….”
Dr Farah gave Mr Lee an X-ray request for that purpose. He said it was also necessary for hip resurfacing that Mr Lee have normal bone mineral density in the right femoral neck, and he gave Mr Lee a request for a bone mineral density Dexa scan.
Dr Farah said:
“If he passes the above criteria with no contra-indications then I will book him for a Specifica ADEPT HSI CT protocol to manufacture patient specific jigs for use in the hip resurfacing operation and I will also book him for routine pre-operative bloods, ECG, MSU and bacterial swabs as well as a pre operative anaesthetic consultation. In preparation, I have given him my pre-operative booklet on hip resurfacing to read as well as hip surveys and the hospital admission form to complete.
If he does not fulfil the criteria for a hip resurfacing, then he will return to you for an anterior total hip arthroplasty. We will be aiming, for surgery in late February/early March {to be at least 3 months from his most recent intra articular hip injection). I look forward to following him up early in the new year but he should contact me before then if he has any problems or concerns.”
On 10 February 2023, Dr Farah reported again[5]. He noted that the X-rays showed a digital measurement of the right femoral head diameter of 56- 51mm. Manual measurement of the X-ray films by Dr Farah suggested 48 to 50mm. The bone mineral density scanning, Dr Farah said, did not contraindicate a resurfacing.
[5] ARD page 35.
Dr Farah noted that the insurer had denied liability, but that Dr Farah would file a request for approval to perform a right hip resurfacing “as the above investigations did not show any absolute contra-indications. He said that once approval was obtained, Mr Lee could then have formal preoperative right hip SPECIFICA CT- protocol for computer assisted pre-operative planning and if this shows definitively that his right femoral head diameter is 48mm or less, then he will need to have a right total hip replacement instead of a resurfacing.
Section 78 Notice
On 3 February 2023, the insurer issued a s 78 notice denying liability pursuant to s 4(a) and s 4(b) the Workers Compensation Act 1987 (1987 Act).
The notice referred to a report by Associate Professor (Dr) Miniter of 16 January 2023 and explained that it was Dr Miniter's opinion that the declinature was based on.
Dr Bodel
Dr James Bodel, orthopaedic surgeon, wrote a medico-legal report on 6 April 2023. The history taken by Dr Bodel was[6].
“The claimant states that he developed a gradual onset of groin pain and greater trochanteric pain in association with the nature and conditions of his work in general.
He was employed as a stable hand and worked over the years at most of the Sydney Metropolitan racetracks, including Warrick Farm, Randwick, Rozelle and other places. On average, he would ride “12 horses per session” in addition to doing the work as a stable hand.
He reports that he has had a number of falls off horses but nothing that induced any significant injury of substance that he can recall. Part of the work also included the:
‘education of young horses, riding in jump outs and barrier education (practice races) and daily training of canter and gallop work’
All of this is very physical in nature and has caused a gradual onset of symptoms over time. The track work is usually done between 4am-9am and he states in his statement that he works Monday Saturday, riding between the 10-12 horses per session.”
[6] ARD page 7.
Dr Bodel recorded that Mr Lee began to notice pain in the greater trochanteric region and groin in about 2015. He was able to manage by the use of analgesic medication but eventually it became unbearable to the point that he sought further advice and investigation.
Dr Bodel noted that others had recorded that Mr Lee had fallen off a horse sometime in early 2021 and reported associated groin pain in the right hip following that event. Dr Bodel noted however that the history he obtained was that Mr Lee was aware of “some possibility of problems in the right groin in about 2015”.
Dr Bodel traced the history of Dr Rooney's involvement in treatment and the opinion of
Dr Fung regarding the results of the MRI scan. Dr Bodel noted the right hip arthroscopy and the consequential benefit experienced by Mr Lee initially over a period of about 18 months, and Mr Lee returned to track work. When the pain recurred in late 2022, Mr Lee took a break from work for about a month and the pain again settled.However, Dr Bodel noted the referral to Dr Farah and the history that the symptoms had never resolved, although they had eased. He noted Dr Farah's opinion and the importance of the proper measurement of the head of the femur.
Dr Bodel noted the opinion of Dr Miniter for the insurer. After reporting on his examination of Mr Lee and the investigations before him, Dr Bodel commented on the documentation before him. He noted the treatment letters from Dr Rooney and the contrast as to the outcome of the arthroscopy with Dr Miniter’s opinion. Dr Bodel noted that there had been a steady deterioration over time, which was the natural history of the arthritic process.
He said:
“In my view, it is quite clear that work in this circumstance, is a substantial contributing factor and also the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration from an underlying disease process being the post traumatic osteoarthritis which is present in both hips. The right hip is the only symptomatic hip at the moment however”.
Dr Bodel confirmed that further interventional treatment was required and confirmed his diagnosis that Mr Lee had suffered a post traumatic osteoarthritic condition in the region of his right hip.
He said:[7]
“There is clearly an underlying genetic predisposition to the development of this condition in the claimant's hips because it is present in both hips.
He has been symptomatic only on the right-hand side and the nature and conditions of his work as a thoroughbred track work rider and stable hand has at the very least caused the aggravation, acceleration, exacerbation and deterioration of an underlying disease process.”
[7] ARD page 12.
Dr Bodel was asked to comment on Dr Miniter's opinion. Dr Bodel agreed with Dr Miniter that the only viable treatment option was a total hip replacement with a cemented femoral stem.
Dr Bodel noted Dr Miniter's view that causation was not specifically related to work in general, but due to his constitutional condition. Dr Bodel agreed “medically with the principle of [Dr Miniter’s] determination that the underlying pathology is largely constitutionally based.” He said:[8]
“I disagree that injury has not occurred in this circumstance because this pathology is clearly covered by the disease provisions of the Act where the nature of work over many years has caused aggravation, acceleration, exacerbation and deterioration to that underlying disease process in the right hip and therefore is a work-related matter.”
[8] ARD page 14.
Dr Miniter
Dr Paul Miniter, orthopaedic surgeon, reported to the insurer on
18 January 2023. Dr Bodel had fairly summarized his opinion. Dr Miniter noted that, “this man presents today following an alleged injury in the workplace, apparently in early 2021, he came off a horse. Having come off a horse many times in his career as a jockey and track work driver rider….”[9][9] Reply page 2.
Dr Miniter said that he was puzzled as to the arthroscopic surgery that was carried out.
He noted that Mr Lee had some, “incomplete relief for perhaps a month and perhaps less” following the surgery, but that the symptoms continued, which Dr Miniter thought was consistent with the MRI scan findings and the findings on arthroscopy by Dr Rooney, who identified significant arthritic change.
Dr Miniter noted that matters progressed and that when Mr Lee returned to work after November 2022, he had great difficulty in getting on and off a horse, and as a result, further investigations had been done. Dr Miniter thought that these clearly demonstrated progressive osteoarthritic change. He said, “…. in simple terms, his hip has become much worse since the arthroscopic procedure and with the passage of time.”
Dr Miniter appeared, without specifically saying so, to be of the view that the arthroscopy had some part to play in the deterioration of Mr Lee's hip condition. However, Dr Miniter did not realise that the arthroscopic procedure was not diagnostic, as he assumed, but was to treat the labral tear, which Dr Miniter erroneously thought had not been addressed.
In examination, Dr Miniter had some suspicions about Mr Lee's presentation, because
Mr Lee cried out in discomfort when his leg was touched by Dr Miniter. All the same, Dr Miniter said in his summary:“I could see no evidence of acute injury to the hip in the original investigations at Bankstown Lidcombe Medical Imaging, I am not certain of the reason for the arthroscopic procedure, but it has been a failure, and in some ways it seems to have accelerated the development of hip arthritis, which now requires hip replacement.
The hip replacement is the only viable treatment option, and once the appropriate time passed, noting he has had an intra-articular injection of corticosteroid, it is the appropriate treatment.”
Dr Miniter thought that hip resurfacing was a relatively controversial part of joint replacement surgery, and he was not certain that there were major advantages to be conferred on “a man of his disposition.” Dr Miniter thought that a cemented hip arthroplasty would be as likely to give a good outcome as any other type of treatment.
Dr Miniter noted that further tests were to be done to determine the size of the femoral head, which would help determine whether Mr Lee was a candidate for resurfacing.
Dr Miniter did not believe that the insurer was responsible for ongoing management.
He said that the diagnosis was pre-existing osteoarthritic change and that, “I could see no evidence of injuries.”. He said that the factor outside employment that had an impact on causation was a clear pre-existing nature of the osteoarthritic change in the right hip.
Dr Miniter noted that he did not regard Mr Lee as being a candidate for a further hip arthroscopy. He said, “as far as I can determine, the arthroscopic procedure by Dr Rooney was diagnostic only and he did not perform a laboral repair.”
He said as to the question of resurfacing:[10]
“I believe there is little or no evidence to support the concept of hip resurfacing surgery as compared to routine total hip replacement. Indeed, in a man of
small stature such as this, I do not recommend specifically changing from a
routine total hip replacement in the hands of a good surgeon to a resurfacing
replacement. I fail to see the benefits of so doing.”
[10] Reply page 5.
Dr Miniter agreed that the hip replacement was reasonably necessary for the condition.
SUBMISSIONS
Mr Morgan
Mr Morgan submitted that the evidence demonstrated by way of investigations that Mr Lee was suffering from a mild to moderate osteoarthritic change in the region of the right hip, particularly in the weight bearing superior aspect of the acetabulum as confirmed in the MRI scans of the right hip dated 30 May 2021 and 7 December 2022. He remarked that the investigations also on 17 May 2021 of the left hip simply showed mild osteoarthritic degenerative changes.
Mr Morgan noted that the right hip only was symptomatic, which he said in passing raised a question of Dr Miniter's opinion that the cause of Mr Lee's problems were simply idiopathic.
Mr Morgan referred to the sequential reports from Dr Rooney which I have indicated above.
He noted particularly Dr Rooney's report of 13 July 2021, which advised that in the right hip arthroscopy towards the end of June he had debrided the laboral tear and carried out a chondroplasty. He noted the history that following the right knee arthroscopy, Mr Lee had got back to work but re injured himself in August 2022 and that an injection of corticosteroid was organized.
Mr Morgan said that Dr Rooney's reports showed that Mr Lee's condition became worse and functionally disabled him with pain. The injection of corticosteroid had given him temporary relief only.
Mr Morgan referred to the situation that had arisen by December 2022, when Dr Rooney discussed the option of a right total hip replacement or whether hip resurfacing would be the optimal treatment.
Mr Morgan referred to the opinion of Dr Farah and the requirement that precise measurements be taken before any decision could be made as to which alternative would be preferred.
This, Mr Morgan said was the reason that the pleadings were expressed in the alternative.
Mr Morgan referred to the report of Dr Miniter. He submitted that Dr Miniter was somewhat equivocal as to Mr Lee's presentation, but his summary did support the treating opinion that hip replacement was reasonably necessary, whilst he was ambivalent about the suggestion that a resurfacing might be an effective alternative.
Mr Morgan noted that Dr Bodel was of a similar opinion.
Mr Morgan noted Dr Miniter’s comments regarding the question of injury.
Whilst Dr Miniter gave a similar diagnosis to Dr Bodel of pre-existing osteoarthritic change, he did not consider the proposition that the nature and conditions of Mr Lee's employment aggravated, accelerated, exacerbated or deteriorated that pre-existing condition.
Mr Saul
Mr Saul referred to Rail Services Australia v Dimovski[11] which he submitted was authority for the proposition that where there was a personal injury within the definition of s 4(a) of the 1987 Act, which also involved a disease process as described by s 4(b) an injured worker was required to plead the personal injury.
[11] [2004] NSWCA 267.
Mr Saul referred to Jaffarie v Quality Castings Pty Ltd (No 2)[12] and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[13].
[12] [2018] NSWCA 88.
[13] [2014] NSWCA 264.
Mr Saul submitted, therefore, that the action was, as I understood him, misconceived.
He referred to an email from the insurer dated 8 August 2023 which was contained in the respondent's ALD. That email set out four separate claims for individual injuries as follows[14]
“Hi, Nicolette,
Information re Glenn’s other claims as requested
· Claim 2200286, date of injury 04/02/2022: Track rider was coming out of the barriers when his foot got stuck and his saddle slipped dislodging rider. Right hip injury.
• Claim 2200467, date of injury 06/06/2022: Track rider had horse rear up dislodging rider. Right hip and shoulder injury.
· Claim 2300108, date of injury 24/09/2022: Stable hand - While riding horse, horse stumbled & fell over. As a result, horses head landed on the right shoulder. Soft tissue injury R shoulder.
· Claim 2300497, date of injury 15/05/2023: Track work rider-While cantering a horse, it ducked sideways causing the rider to fall. While falling, rider tried to hang onto the reins of the horse with R hand. As a result, twisted R arm & shoulder. He continued riding the horse, it ducked again, caused to fall again affecting R hand & shoulder.”
[14] ALD page 120.
Mr Saul submitted that sufficient proof of the relevant personal injuries had thereby been lodged that should have been claimed in conformance with the authority on which he relied.
He contended that the falls of horses were not commensurate with the description of ‘nature and conditions of employment.’ He submitted that these were actual accidents in respect to which no opinion regarding causation had been obtained.
Mr Saul submitted that all the medical opinion before the Commission agreed that Mr Lee suffered from a constitutional condition. He submitted that the symptomatic condition of the right hip was consistent with it having been injured in a fall.
Mr Saul submitted that Dr Bodel's opinion was, “sloppy”. There had been no analysis of the work injuries and Dr Bodel's opinion that the nature and conditions of Mr Lee's work were the main substantial contributing factor by way of aggravation, etc of the disease process was no more than an ipse dixit.
Dr Bodel failed to give any explanation as to why he came to that conclusion. His opinion as to causation was that the right hip pathology was primarily a genetically determined arthritic process which was also present in the left hip.
Dr Bodel made no effort to explain why the right hip therefore was an injury as defined by
s 4(b). Mr Saul referred to Hancock v East Coast Timber Products Pty Ltd[15] and Makita (Australia) Pty Ltd V Sprowle[16] in that regard.[15] [2011] NSWCA 11.
[16] [2001] NSWCA 305
Mr Saul submitted that Dr Bodel's opinion fell short of establishing how the nature and conditions of Mr Lee's work either constituted the main contributing factor or indeed materially caused the need for the proposed surgery.
He submitted uncontroversially that the fact the insurer had paid for the arthroscopy in
June 2021 did not constitute an admission, referring to Department of Education and Training v Sinclair[17][17] [2005] NSWCA 465.
Mr Saul submitted that in any event, the nature of the treatment was not sufficiently delineated. What the applicant was seeking was a blanket approval for one of two treatments.
Mr Saul submitted that both Dr Bodel and Dr Miniter had doubts about whether resurfacing was the appropriate treatment.
Mr Morgan in reply
In reply, Mr Morgan argued that Dr Bodel did not join Dr Miniter in expressing any doubts about the resurfacing alternative. Rather he deferred to the clinicians who were unable to determine until approval had been given which of the proposed treatment was preferable.
Mr Morgan submitted that Dr Bodel's opinion was not an ipse dixit. He referred to the history taken by Dr Bodel and his discussion of that history and the opinions of Dr Rooney in particular.
Mr Morgan referred to summary by the GP Dr Khan that encapsulated the nature of Mr Lee's employment, which included occasionally falling off the horses he was having to ride as part of his occupation.
Mr Morgan submitted that Mr Lee's position was more akin to that of a shearer who would keep having accidents to his back as a result of the nature of his work, and that the principle in Dimovski therefore was not enlivened.
Mr Morgan submitted that it was not alleged that any particular fall had caused an injury or indeed aggravated his disease condition and referred to Dr Rooney's description of Mr Lee's occupation in his report of 18 May 2021.
DISCUSSION
Section 4 of the 1987 Act provides relevantly:
"’injury’-
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’ , which means-(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”
Mr Saul’s submissions about Rail Services v Dimovski,[18] must be rejected. He argued that the facts of this case were such that from a legal viewpoint, the claims for compensation regarding the falls listed in the respondent’s email of 8 August 2023 constituted proof that Mr Lee had sustained his injury as a personal injury (or presumably several personal injuries) as provided by s 4(a) of the 1987 Act. Whilst they also caused aggravation[19] of a disease condition pursuant to s 4(b)(ii) of the 1987 Act, the Commission was bound to assess the injuries pursuant to s 4(a).
[18] [2004] NSWCA 267.
[19] For convenience, the use of the word “aggravation” also includes “exacerbation, acceleration and deterioration.”
Mr Saul said that the applicant had not presented his case that way and that it should therefore fail, as the individual personal injuries have not been pleaded.
Whilst no doubt Mr Saul is correct in his submission as to the legal principles involved, the factual situation in the current case does not admit of their application.
It can be seen from the histories given by both the applicant himself in his statement, and those to Dr Bodel, and particularly Dr Rooney, that it was in fact the cumulative effect of all the nature of Mr Lee's employment that was responsible for his injury, and there has been no frank incident that could be said to be responsible for the injury. The number of falls has been such that it would not be practical to trace them, let alone plead them all. This makes Mr Lee’s case appropriate to be dealt with as it was described by Dr Bodel – that his injuries have been caused by the aggravation of his degenerative condition by the nature of his work, which included the riding of horses and the concomitant exposure to the danger of falls, along with the other requirements of his position. I accept Mr Morgan’s analogy that Mr Lee’s position is similar to that of a shearer, the nature of whose employment made such a worker vulnerable to back injuries, including the occasional personal injury when being kicked or otherwise assaulted by a sheep. Accordingly, I do not accept that the circumstances of this case dictated that it should be framed within s 4(a). As Mr Lee said himself, riding horses day in, day out is a dangerous way to make a living.
Mr Saul argued that the nature and conditions of Mr Lee’s employment had not been shown to be the main contributing factor to the injury but on this analysis of the facts I am satisfied that they were. All histories indicated that part of the conditions of the occupation followed by Mr Lee was that he had to ride racehorses both on the racecourse itself and when training.
The evidence satisfies me that this occupation carried with it the probability that there would be falls from time to time off the various horses being trained. The investigations showed that Mr Lee has degenerative changes in both hips, but it is the right hip, which has been exposed to the many traumata described within the evidence, that has been injured. That is a clear indication that the nature and conditions of Mr Lee’s occupation were indeed the main contributing factor to his injury.
This also was the basis of Mr Saul's submission that the need for surgery did not arise from any injury that had been established by Mr Lee in the manner in which he had presented his case, and I accordingly reject that submission.
As to the submission by Mr Saul that the proposed treatment was described in too vague a form, I note that Dr Bodel, Dr Rooney and Dr Farah are all of the view that the question of resurfacing should be considered and that it might obtain a better outcome for Mr Lee than a simple right hip total replacement.
I do not accept Dr Miniter’ reservations as to whether the resurfacing procedure was appropriate.
Whilst Dr Miniter believed there was little or no evidence to support the proposal, the three medical specialists to whom I've just referred had a different view. Dr Miniter did not expand on such a procedure would be inappropriate, apart from saying that Mr Lee's small stature was a relevant consideration. He did not, however, explain why that was so.
Dr Miniter did acknowledge that the treating specialists were yet to determine whether Mr Lee was a proper candidate for resurfacing, and I do not read his opinion as being as stating that it was not reasonably necessary.
Accordingly, I'll find that the proposed treatment is reasonably necessary.
I accept Dr Farah's opinion that once this approval is given, Mr Lee can then have formal tests done definitively show what the right femoral head diameter is, which in turn would determine the precise nature of the surgery.
That is a matter that can properly and responsibly be left to the treating surgeons.
Accordingly, I find that the proposed treatment, being a total right hip replacement and incidentals, and or a right hip resurface as proposed by Dr Rooney and Dr Farrah, are reasonably necessary.
The respondent will pay the cost of such a proposal and costs associated with that procedure.
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