Lennon v Northern Beaches Council

[2021] NSWPIC 264

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Lennon v Northern Beaches Council [2021] NSWPIC 264

APPLICANT:

Peter Lennon

RESPONDENT:

Northern Beaches Council

MEMBER:

John Wynyard

DATE OF DECISION:

28 July 2021

CATCHWORDS:

WORKERS COMPENSATION- Claim for left hip surgery, section 60 expenses and weekly benefits; applicant employed for 23 years with Council doing arduous work; onset of hip symptoms agreed to have been caused by osteoarthritis following adolescent injury; applicant unaware until onset of symptoms; section 289A(4) application allowed to raise injury and related issues; application to admit 212 pages of factual investigation dated the day before the hearing; application for adjournment by respondent to serve report of its medico legal expert; application by respondent after matter reserved to reopen and rely on said medico-legal expert: Held- section 289A application allowed as parties clearly prepared for issues thereby raised (ex tempore during hearing); application to admit factual investigation refused as served day before hearing with no notice to Commission or applicant (ex tempore during hearing); application for adjournment refused (ex tempore); application to reopen refused on consideration of relevant criteria; no challenge to reasonable necessity for surgery; aggravation of underlying condition found pursuant to section 4(b)(ii); award applicant for each claim.

DETERMINATIONS MADE:

1.     The application by the respondent to reopen proceedings is dismissed.

2.     The respondent will pay for the costs of and associated with the proposed total left hip replacement surgery as recommended by Dr Chia.

3. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC charge.

4.      The respondent will pay the following weekly benefits:

(a)    from 22 December 2020 to 29 December 2020 at the sum of $757.12,

(b)    from 30 December 2020 to date and continuing at the sum of $565.57.

STATEMENT OF REASONS

BACKGROUND

1. Peter Lennon, the applicant, brings an action for weekly payments of compensation and for a declaration that a proposed left total hip replacement is reasonably necessary. The action is brought against the Northern Beaches Council, the respondent.

2. A dispute notice was issued on 22 December 2020 and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

(a)    Did the applicant injure his left hip in the course of his employment?

(b)    If so, what was the nature of that injury?

(c)    Has the applicant satisfied his onus?

(d)    If so, the quantum of weekly payments.

PROCEDURE BEFORE THE COMMISSION

1. The matter was listed for telephone conciliation and arbitration on 11 May 2021. Ms Sabina Bathgate from Messrs Carroll & O’Dea Lawyers instructed Mr Ty Hickey of counsel for the applicant. Mr Alex Mileski from Messrs HWL Ebsworth Lawyers instructed Mr Josh Beran for 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

1. The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;

(b)    Application to Admit Late Documents (ALD) from the applicant dated 5 May 2021, and

(c)    Reply and attached documents.

Oral Evidence

1. No application was made in relation to oral evidence.

FINDINGS AND REASONS

Preliminary matters

Section 289A(4) application

1. At the start of the hearing Mr Beran made an application pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act1998 (1998 Act) which had been set out in the Reply form under “Any other issues”.

2. The s 78 notice, as indicated, had been issued on 22 December 2020.  The matters in dispute were described as follows[1]:

   “(a) Whether your present condition, and subsequent need for any further weekly compensation, is the result of alleged injury sustained during the course of your employment with Northern Beaches Council on 29 September 2020, as required by section 33 of the Workers Compensation Act 1987 ("the Act");

   (b) Whether your present condition, and subsequent need for any treatment, is the result of alleged injury sustained during the course of your employment with Northern Beaches Council on 29 September 2020, as required by sections 9A and 60 of the Act.”

   [1] ARD page 7.

3. Section 33 of the 1987 Act provides:

   “If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”

4. It can be seen that the manner in which the insurer expressed the dispute did not reflect the provisions of s 33. The respondent sought to clarify those issues by adding additional denials in the Reply form, which stated:

   “INJURY

   (1) The Respondent disputes the Applicant received a personal injury to his left hip in the course of his employment with the Respondent. The Respondent also disputes the Applicant's injuries/conditions arose out of the course of his employment with the Respondent: section 4 of the Workers Compensation Act 1987 (WCA).

   (2) The Respondent submits the Applicant suffers from a disease condition which is unrelated to his employment with Northern Beaches Council: Section 4 of the WCA.

   (3) The Respondent submits the Applicant's disease condition was not contracted in the course of his employment with Northern Beaches Council: section 4(b)(i) of the WCA.

   (4) The Respondent submits the Applicant's employment with the Respondent did not aggravate, exacerbate, accelerate or cause deterioration of his disease condition: section 4(b)(ii) of the WCA.

   (5) The Respondent submits the Applicant's employment with it was not the main contributing factor to the contraction of his disease or the aggravation, exacerbation, acceleration or deterioration of his disease: section 4(b) of the WCA.

   (6) In the alternative, if the Applicant is found to have received a personal injury and not to suffer from a disease condition, the Respondent submits the Applicants' employment with it was not a substantial contributing factor to the injury: section 9A of the WCA.

   WEEKLY PAYMENTS

   (7) The Respondent disputes the Applicant was/is totally or partially incapacitated for work as a result of personal injury or disease injury within the meaning of section 4 of the WCA, and relies on Section 33 of the WCA.

   (8) In the alternative, if the Applicant is found to be incapacitated for work as a result of a personal injury or disease injury received in the course of his employment with Northern Beaches Council (which is denied), the Respondent disputes the Applicant has no current capacity for work and submits that the Applicant is only partially incapacitated and is capable of working full-time, suitable duties.

   SECTION 60 EXPENSES

   (9) The Respondent disputes the total left hip replacement surgery proposed by Dr Sam Chia is reasonably necessary as a result of a personal injury or disease injury received by the Applicant during the course of his employment with the Respondent whether in relation to the 'nature and conditions' of his employment with the Respondent or otherwise: sections 59 and 60 of the WCA.

   (10) The Respondent disputes the medical treatment received by the Applicant was reasonably necessary as a result of a personal injury or disease injury received by the Applicant during the course of his employment with the Respondent, whether in relation to the 'nature and conditions' of his employment with the Respondent or otherwise: sections 59 and 60 of the WCA.”

5. In an ex tempore decision I granted leave for those unnotified matters to be incorporated in the denial.

Application to Admit Late Documents (ALD)

1. There was also an application to admit late documents dated 4 May 2021.  It is common ground that these documents were not served on the applicant until the day before the hearing, 10 May 2021.

1. The documents consisted of a factual investigation from M & A Investigations. The report contained statements from Mr Anthony Cox and Mr Richard Wei Li, both dated 4 May 2021. Mr Cox had already made a statement dated 23 October 2020 which was contained in the reply, which also produced an email from Mr Li dated 7 October 2020.

2. Mr Hickey objected to the reception of this material, saying that he was prejudiced by its introduction at this late stage.

3. No prior notice had been given of the respondent’s intention to rely on this documentation and it had not been discussed at the teleconference. The documentation ran to 212 pages, including much data that largely confirmed the duties Mr Lennon performed working for the council.

4. The statements from Messrs Cox and Li sought to re-iterate the content of their earlier assertions, and to interpret the data served to cast doubt on the degree that Mr Lennon’s duties might have affected his injured hip. 

5. In an ex tempore decision I rejected the application.

Application to re-open to adduce further evidence

1. I reserved my decision on 11 May 2021.  I was accordingly surprised to be informed that the respondent had sought to lodge further evidence on 13 May 2021, and had sought a telephone conference to enable that to be done.  I rejected the application for a further teleconference and ordered written submissions to be lodged.

2. The additional evidence was a further report from Dr Greg Bruce, Orthopaedic Surgeon, the medico-legal expert retained by the respondent.  It was dated 11 May 2021, and concerned a hypothesis that an incident at Mr Lennon’s home that had been discovered in the GP
   Dr Monica Merey’s notes, of which Dr Bruce had not been aware, might be relevant.  In his report Dr Bruce reproduced the respondent’s letter of instructions advising him of this entry, and seeking his opinion as to whether “the fall described by Dr Merey rendered the Claimants previously asymptomatic left hip condition symptomatic (whether by way of aggravation, exacerbation, acceleration, or deterioration)?”.

3. In support of this application, the respondent made three sets of similar submissions. It set out the circumstances as to why Dr Bruce’s report was not available at the hearing. This arose from a conversation at teleconference on 26 April 2021 as to the significance of
   Dr Merey’s note. The note was dated 28 September 2020, and recorded that Mr Lennon had fallen whilst playing with his child some weeks prior. This fall had not been mentioned in
   Mr Lennon’s statement, and at the time of the teleconference had not been considered by either medico-legal expert, namely Associate Professor (A/Prof) Nigel Hope or Dr Greg Bruce.

4. The respondent’s submission accurately recorded that on being asked during the teleconference why Dr Bruce had not taken a history of this event, the respondent replied that it did not have the clinical notes available at the time of Dr Bruce’s assessment on 3 December 2010.  They had not become available until 29 January 2021.

5. Again, the respondent’s submission accurately related that both parties then indicated that they intended to get supplementary reports from their respective experts regarding this entry prior to the hearing. The applicant lodged a supplementary statement from Mr Lennon together with a supplementary report from A/Prof Hope on 5 May 2021, but the respondent failed to lodge any further report from Dr Bruce by the hearing date. The respondent sought a supplementary report from Dr Bruce on 27 April 2021, but Dr Bruce failed to respond until the day after the hearing, 12 May 2021, despite, the respondent submitted, all reasonable efforts by it.

6. It is convenient to set out the relevant evidence at this point.   The clinical notes were contained in the ARD, which was dated 29 March 2021. Dr Merey’s note of 28 September 2020 read:[2]

   “Fell on the carpet onto left side when playing with son 5 weeks ago

   1 week ago started pain in left hip

   lower back
   can't bend rt hip
   ….
   Reason for contact:

   Hip pain”

   [2] ARD page 45.

7. Dr Merey wrote a certificate “To Whom It May Concern” on 5 February 2021[3].  She said that she saw Mr Lennon on 28 September 2020, and that he was complaining of pain in the left hip, he could not stand or walk and he had to stop working. She said:

   “He mentioned that he had a fall onto the carpet five weeks before.

   This part of the history was instantly ignored, as there is no fall, that gives pain in a hip joint five weeks later.”

   [3] ARD page 103.

8. Dr Merey noted that she took a history that Mr Lennon was walking 17 km daily at work.

9. The supplementary statement was made by Mr Lennon regarding this entry, and a supplementary report was obtained from A/Prof Hope. Both were dated the same day as the teleconference, 26 April 2021,[4] and lodged on 5 May 2021.

   [4] ALD lodged by applicant.

10. Mr Lennon indicated that 28 September 2020 was the first time he had consulted Dr Merey regarding the onset of his left hip problems. Dr Merey had asked him a number of questions regarding his family history and whether he had sustained any injuries recently.  He said:

    “In order to give Dr Merey a truthful and comprehensive history, I advised her that I had recently had a fall onto my left side when playing with my son. This was some five weeks earlier however the pain in my left hip had only begun one week prior to 28 September 2020.”

11. Mr Lennon explained that he was merely trying to assist the doctor, and that he had never regarded the incident as being of any real significance with regard to his hip condition. He did not advise Dr Bruce, he said, for that reason.  Mr Lennon said he was perplexed as to why the clinical records were not made available to Dr Bruce by the Council, as he had previously signed an authority for the council to access such records.

12. A/Prof Hope’s supplementary report noted that his interview with Mr Lennon on 15 February 2021 was “detailed and exhaustive and lasted for a full hour.”  A/Prof Hope found Mr Lennon to be an accurate and reliable historian, with all the history obtained correlating with verifiable clinical facts. The history taken by A/Prof Hope was that Mr Lennon’s left hip had been symptom-free prior to 29 September 2020. A/Prof Hope said:

    “The fall on or about August 2020 was a minor injury which fully recovered as indicated by the fact that no mention of it was made when a detailed history was undertaken on 15 February 2021.

    Contrasting this, 23 years of work as a labourer for Northern Beaches Council involved heavy physical work including sweeping, shovelling and rubbish pick-up (cleaning of recreational reserves) and in addition using a handheld and backpack blower. Walking 17 km approximately each day was also required. On 29 September 2020 a clear history is given of occupationally induced left hip pain whilst cleaning reserves around the Manly area.

    Simple logic has it that the nature and conditions of heavy work for 23 years are far more significant than a minor fall at home which fully recovered.”

13. As indicated, Dr Bruce’s report was dated 11 May 2021, the date of the hearing.  Dr Bruce said at pages 2/3 of his report:

    “Mr Lennon had pathology in the left hip joint by the time of the fall described by Dr Merey. The fall would have resulted in pain in the hip which is a characteristic symptom of osteoarthritis of the hip. Osteoarthritic hips become painful after vigorous physical activity or after minor trauma such as a fall on the carpet. It may have been that this was the first time that he experienced pain in the hip but he would most certainly have experienced it as a result of the fall.

    In my opinion, the fall caused painful symptoms in the left hip as a result of the pre-existing pathology in the hip. The symptom could be described as 'aggravation' but there was no exacerbation, acceleration or deterioration of the pre-existing pathology. The pre-existing pathology simply became painful (ie symptomatic).

    …

    Vigorous activities at work will cause symptoms in an osteoarthritic hip. However, the work activity does not cause the underlying pathology.”

14. Dr Bruce was asked whether Mr Lennon’s employment was the main contributing factor to the injury.  Dr Bruce said at page 3 of the report:

    “No. The employment has not caused the osteoarthritic pathology in the hip and is not the only cause for it to become symptomatic. An osteoarthritic hip will become symptomatic following physical activity of any description. It is notable that Mr Lennon refused to answer any questions regarding the effect of the symptoms on his day-to-day activities at the time of my first assessment. The reverse interpretation is that he refused to state whether he was having symptoms, similar to his symptoms at work, while he was doing day to day activities in household duties, personal care and recreation activities. The nature of his pathology and symptoms indicate that he would have been having pain during household activities and any form of physical recreation despite his denials.”

15. At page 4 of his report Dr Bruce stated that the underlying pathology:

    “…may have been symptomatic and the symptoms may have commenced so slowly that Mr Lennon was unaware of them. He may have been truly asymptomatic. Inevitably the condition would become painful. The onset of pain may result from minor trauma or from physical activity. It is also possible for the pain to start spontaneously for no obvious reason to the patient. In Mr Lennon’s case, the onset of pain occurred following his fall on the carpet and now any physical activity is painful.”

16. In addition to its submission that all reasonable efforts had been made by it to obtain
    Dr Bruce’s report in time, the respondent submitted that it was in the interests of justice for the report to be admitted. The respondent relied on rule 67(4) of the Personal Injury Commission Rules 2021 in that regard. Rule 67 provides relevantly:

    “67 MATERIAL TO BE LODGED IN APPLICABLE PROCEEDINGS

    (1)    A party to applicable proceedings must lodge and serve on the other parties, with an application to commence proceedings or a reply to an application, the following-

    (a)the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that-

    (i)are in the possession or control of the party, and

    (ii)that have not been lodged by a party in the current proceedings,

(b) the information or documents required to be provided with the application or reply by-

(i)the approved form for the application or reply, or

(ii)these Rules, or

(iii)the procedural directions.

(2)    Subject to subrules (3) and (4), a party may not introduce evidence that has not been—

(a)lodged and served as required by subrule (1), or

(b)provided to another party as required by enabling legislation or these Rules.

(3)    If a party to applicable proceedings wishes to rely on a document not lodged and served in compliance with subrule (1), the party must-

(a)as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties, and

(b)not later than 3 working days before a medical assessment or teleconference, on one occasion only and by the approved form, lodge all documents not previously lodged, and

(c)not later than 3 working days before a hearing, on one occasion only and by the approved form, lodge all documents not previously lodged.

(4)    The appropriate decision-maker for the applicable proceedings may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would be prevented from introducing because of the operation of subrule (2) if-

(a)the party complies with subrule (3), or

(b) the appropriate decision-maker gives the party leave to lodge additional documents.

(5)     …..”

1. Mr Hickey objected to the reception of this evidence in his written submissions. He noted accurately that an application had been made in the hearing by counsel for the respondent for an adjournment and leave to adduce evidence from Dr Bruce, which application was refused.  This application was no more than an attempt to cavil with that refusal, and in any event was misconceived. 

2. Mr Hickey submitted that the respondent had not adequately explained its delay or to identify what steps it took, if any, after seeking the supplementary opinion from Dr Bruce on 27 April 2021, when the matter had been set down the day before for hearing on 11 May 2021.
   Mr Hickey contested the submission that all reasonable efforts have been made by the respondent, as the email correspondence lodged by it showed that no effort was made to follow-up the request of 27 April 2021 until the day before the hearing, 10 May 2021. (The email chain appears in the respondent’s submissions, although the page number is obscured).

3. Mr Hickey submitted that reliance on Rule 67(4) was misconceived. He submitted firstly that the respondent had overlooked the fact that the proceedings were closed and simply awaiting determination. Secondly, Mr Hickey submitted that in any event it could not be said that the admission of this material was in the interests of justice.

4. Mr Hickey summarised his opposition as follows:

   “(a)    the respondent had failed to comply with Commission rules regarding service and notice of evidence,

   (b)    it had failed to give an acceptable explanation for the delay,

   (c)    prejudice would be caused to the applicant by the admission of this evidence, and subsequent delay,

   (d) the application infringed the objects of the legislation as set out in section 3 and section “42” of the Personal Injury Commission Act 2020 (I assume Mr Hickey meant section 41). The respondent’s actions did not facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.”

5. The respondent submitted that the probative value of Dr Bruce’s evidence outweighed any prejudice that might accrue to the applicant. The applicant had already obtained the supplementary evidence that was foreshadowed at the teleconference on 26 April 2021, and although the respondent was unable to comply with its indication that it would do the same, the delay (one day) was insignificant.

DECISION

1. The application to reopen is rejected.  Although the Commission is not bound by the rules of evidence, they provide a guide as to the approach in appropriate cases to the admission of evidence in cases before the Commission. Applications to re-open have been the subject of much judicial attention. Where such an application is made after the case has been reserved, the relevant criteria have been considered in Cappello & Anor v Scrivener & Anor (No 2)[5] and Gaskin v Ollerenshaw[6]. 

   [5] [2021] NSWSC 168 (Cappello).

   [6] [2010] NSWSC 788 (Gaskin).

2. In Gaskin Garling J was dealing with an application to reopen after the evidence and submissions had concluded, and the judgement reserved. The applicable rules were under the Civil Procedure Act 2005, which for present purposes were similar to the objects and guiding principles provided by section 3 and of the Personal Injury Commission Act 2020, that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

3. Garling J said at [21]:

   “21 A clear exposition of the appropriate principles for the exercise of the discretion can be found in the judgment of Clarke JA (with whom Mahoney and Meagher JJA agreed) in Urban Transport Authority of NSW v Nweiser supra, at 478:

   “The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place ...”

4. In Cappello Stevenson J was also dealing with an application to re-open when the matter was reserved for judgement. He said at [46]:

   “46.   The principles upon which the Court acts when faced with an application to reopen are settled. Those principles are that:

   (a) the overriding question is whether the interests of justice are better served by allowing or refusing the application;

   (b) the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the applicant can show that by accident without fault on his or her part, he or she has not been heard;

   (c) classes of cases in which leave may be granted include, but are not limited to where:

   (i) fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;

   (ii) there has been inadvertent error;

   (iii) there has been a mistake in the apprehension of the facts; and

   (iv) there has been a mistaken apprehension of the law.

   (d) the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court.

   (e) nor is leave to be granted “simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put”;

   (f) what must be shown is that the Court has “apparently proceeded according to some misapprehension of the facts or the relevant law and that that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing”; and

   (g) where, as here, the case has been closed, and judgment reserved and delivered, exceptional circumstances must be shown.

   47.   It is implicit in all the cases considering this question, that some explanation must be offered as to why the evidence sought to be deployed was not tendered at the appropriate time.”

   (Authorities omitted)

1. In the present case there has been no misapprehension of either the facts or the relevant law, neither has there been inadvertent error.  There has been no fresh evidence – indeed the subject of the report of Dr Bruce was reasonably discoverable before the hearing, and the issues it addressed were discussed at the teleconference on 26 April 2021.   

2. As to delay, the evidence indicates the request was made of Dr Bruce the day after the discussion of the relevant issues at teleconference on 26 April 2021. There is no evidence of any follow-up until 10 May 2021, the day before the hearing, and the conclusion must follow that the delay in acquiring Dr Bruce’s report was caused by the neglect or default of the respondent.

3. As to the plea that Dr Bruce’s report must be admitted in the interests of justice, an examination of his evidence fails to establish that it has any probative value. The issue that this application seeks to address is the appearance in the clinical notes of Dr Merey, which were lodged with the ARD, of an entry dated 28 September 2020.

4. It can be seen that there was no suggestion by Dr Merey, either in her entry of 28 September 2020 or her certificate of 5 December 2020, that Mr Lennon had indicated that he had felt symptoms in his left hip when he had fallen five weeks earlier whilst playing with his son. Moreover, such is implicit in Dr Merey’s comment of 5 December 2020 that there was no fall that gives pain in a hip joint five weeks later. Mr Lennon himself differentiated between the fall whilst playing with his son five weeks earlier and the onset of pain in his left hip which he said had only begun about a week before he consulted Dr Merey.

5. Accordingly it becomes a matter of conjecture how Dr Bruce concluded that the earlier fall had caused the left hip to become symptomatic. There was no basis for Dr Bruce’s assumption that the earlier fall “would have resulted in pain in the hip.”  His statement that “it may have been” that the earlier fall was the first time that Mr Lennon experienced pain in the hip had no factual support, and Dr Bruce did not explain why he said that Mr Lennon “would most certainly have experienced [pain in the left hip] as a result of the fall.”  There is no support for those conclusions, which are based on unfounded speculation.

6. The basis for Dr Bruce’s opinion that the pathology in Mr Lennon’s hip was causing symptoms was a suspicion that Mr Lennon had refused to answer questions that he
   (Mr Lennon) thought irrelevant. Dr Bruce referred to that part of his interview in the original consultation of 4 December 2020, noting that Mr Lennon had refused to answer questions regarding the effect of the symptoms on his day-to-day activities.  When describing that refusal in his first report of 4 December 2020, Dr Bruce had said:[7]

   “… [Mr Lennon] stated that he would like it noted that his attendance indicated his wish for cooperation. He frequently expressed annoyance or disagreement with the questioning regarding specific symptoms and he felt that they were intrusive and irrelevant….

   His general demeanour and spoken comments indicated dissatisfaction and frustration that he was required to present for assessment.”

   [7] Reply page 4.

7. Dr Bruce said in his report of 13 May 2021 that “the reverse interpretation” of that conduct was that Mr Lennon refused to state whether he was having symptoms similar to his symptoms at work whilst on his day-to-day activities at home. Dr Bruce had said that the nature of the pathology “and symptoms” indicate that he “would have been” having pains in doing those day-to-day activities “despite his denials.”

8. I would observe that there was no contemporaneous evidence of such symptoms and denials; there was simply a refusal to answer questions that Mr Lennon found offensive and irrelevant. Such an attitude might well instill some reservation as to a person’s temperament, but it did not signify that Mr Lennon had anything to hide – particularly the presence of left hip symptoms, which had been explicitly discounted by Mr Lennon and A/Prof Hope.  There was no basis for Dr Bruce’s hypothesis regarding the reverse interpretation. Like most of
   Dr Bruce’s assumptions in his report of 13 May 2021, they were based on speculation and had no basis in fact.

9. Whilst such an opinion would make Dr Bruce’s report inadmissible in an evidence-based jurisdiction,[8] the more common approach within the Commission is to allow the evidence but give it no weight. In this case, however, this report is the basis for an application to re-open, and accordingly should not be admitted.  I do not regard Dr Bruce’s opinion, with respect, as being within that “exceptional circumstance” that would overcome the criteria listed above for reopening.

   [8] See e.g. Makita (Australia) Pty Ltd v Sprowles [2010] NSWCA 305.

10. Thus, exceptional circumstances have not been shown and the interests of justice are better served by refusing the application.

The Substantive Case

1. The applicant claimed injury to his left hip as a result of the nature of his employment with the respondent, on a deemed date of 29 September 2020. Mr Lennon began his employment in 1997 with what was then the Manly Council which has now been amalgamated to the respondent, the Northern Beaches Council.

2. In 1997 Mr Lennon was employed as a casual in the garbage section when he was mainly involved in running and emptying bins into the back of the garbage truck. He was there for 18 months. He then applied for a position in the cleansing section at Manly Council and commenced full time employment at the Balgowlah Depot in 1999.  He worked there until 2012 and during that period of time was employed in Reserve Maintenance.

3. In his statement of 20 March 2021 Mr Lennon advised that his daily duties were restructured in 2012. He then set out those daily duties:[9]

   [9] ARD pages 2/3.

   “5.     I had a daily set of reserves duties which I had to perform. These included things such as completing a set run, sweeping multiple areas with a large broom, shovelling sand from multiple areas, using both a hand held and back pack blower, cleaning and emptying multiple barbeque transferring fat waste into containers from the ground level and transferring the waste back to the depot and emptying them again. I also had to remove litter from multiple areas, remove dumping rubbish.

   6.      I would estimate that I walked an average of 17 KM per day however more often than not; I would go well beyond this figure.

   7.     In addition to the above, I also had street cleaning daily duties.

   8.     These included sweeping the CBD area and multiple residential streets.

   9.      I also had to clean streets by hand using large brooms, shovelling dirt/mud into the back of a truck using a large pan and broom. I also had to shovel large amounts of sand when necessary.

   10.    The street cleaning duties also required me to rake beaches, remove logs and other debris from beaches and this was especially hard after heavy period of wild and chaotic weather events.

   11.    From the streets, I also had to collect dumped furniture and rubbish. These were often heavy objects and I had to manually lift these onto the trucks. Additionally, once we returned to the depot, I had to sort through the furniture.

   12.    In addition to the general reserve and street maintenance as discussed above, I also had the responsibility of up keeping other areas such as shops, back beaches and areas that required high pressure cleaning. In terms of shops cleaning, I had to do large amounts of shovelling sand on stairs and showers at areas such as the whole of Manly Ocean Beach front area.

   13.    I also had to use a large broom on stairs and showers, and use other equipment such as hand held and backpack blowers. I was also required to remove rubbish from multiple areas.

   14.    In terms of high pressure cleaning, I had to pull out a heavy 40 m long hose and wind it out and back multiple times. I also had to fill large water tanks multiple times. When I was required to clean multiple areas using the high pressure cleaner, I would estimate that I would be walking for a large amount of time while pulling out the hose and dragging the pressure cleaner with me.

   15.    For beach maintenance, I was required to walk an large area for an extended period of time, remove little from the beach and surrounding areas and maintain multiple and very large steep outdoor staircases. Overall, although the above is only a snapshot of the employment duties I had to perform on a daily basis, I consider the above duties to be very physically demanding to perform on a daily basis.

   17.    The daily structure and different duties as described above are at the discretion of my supervisor, and the frequency of the set run tasks performed vary on a regular basis. It is not also uncommon to perform multiple tasks as I have described above in a single day.

   18.    I had been performing the above tasks, for approximately 10-11 years since 2011 until the present day.”

Pinnacle Rehab

1. The respondent obtained a Work Place Assessment Report from Pinnacle Rehab dated 10 December 2020.  The report contained a list of the tasks and work requirements Mr Lennon was required to carry out, which I reproduce:[10]

   [10] Reply page 21.

Position Title

Operator Driver

Cognitive Demands

• Working memory
• Short term memory
• Long term memory
• Problem solving and decision making abilities
• Time management skills
• Spatial reasoning
• Risk management
• Visual-motor coordination

Environmental

• Noise level - subjected to outdoor noises
• Ventilation - subjected to outdoor environment
• Lighting - subjected to outdoor lighting
• Temperature - varied and depending on weather
• First aid facilities available (trained first aiders available) I
• PPE available (personal protective equipment)
• Terrain - varied including walking on concrete/grass/sand

Work hours

• 7.6 hours per day • 4am to 12.06pm
• 10 days over a fortnight

Breaks

• 1 x 30 minute

Tasks
Removing litter in car parks, beaches and reserves Involves:

-    Cleaning beaches using bags and litter pickers

-    5 beaches, 2 carparks and walkways and bus stops on alternate Tuesday run

-    Removal of all litter, debris and unsightly material from all sand areas of beach and proper disposal of material.

-    Drive a UTE in between beaches or reserves Walking at reserves and beaches to remove litter on stairways and walkways

-    Set run of 18 reserves plus stairs and walkways: approximately 15-17kms

-    twice per week (currently Wednesdays and Thursdays)

Frequency
Constant

Medium work

-    Occasional sitting to drive UTE between sites

-    Constant dynamic standing walking

-    Occasional stair climbing

-    Frequent cervical rotation/flexion

-    Frequent unilateral or bilateral shoulder forward reaching to waist height

-    Constant bilateral gripping Frequent stooping

-    Occasional bending and squatting

-    Occasional lifting and carrying up to 10-15kgs

Task
Cleaning BBQ's and BBQ pits across the 18 reserves

-    Using bucket and water/steel wool and scraper

-    Empty fat trap bucket which have 20L capacity

-    Buckets taken back to the yard for disposal and emptying into recycle pit/wash bay Frequency is seasonally dependant and more frequent in summer months

Frequency
Occasional

-   Constant dynamic standing and occasional walking

-   Occasional climbing steps

-   Cervical flexion and rotation

-   Frequent bilateral shoulder flexion to waist height

-   Full functional bilateral, hand, wrist and elbow movements

-   Frequent pushing and pulling Moderate unilateral gripping

-   Occasional sustained stooping

-   Frequent bending and occasional squatting

-   Frequent bilateral manual handling 0-10kg Occasional manual handling up to 20kgs from ground level to waist level

Task

Dog rolls/Dog loo
Involves:

-     Refill dispenser of doll roll

-     Chest height dispenser and roll weighing approx. 1kg

Frequency
Occasional

-    Occasional sitting to drive UTE between sites

-    Constant dynamic standing walking

-    Occasional stair climbing

-    Frequent cervical rotation/flexion

-    Frequent unilateral or bilateral shoulder forward reaching to chest height

-    Occasional bilateral gripping

-    Full functional bilateral, hand, wrist and elbow movements

-    Non-repetitive bilateral gross and fine finger movements

-    Occasional bending pinnacle rehab

-    Rare manual handling up to 5k

-    Frequent manual handling to 1kg

Task

Sweeping/ clean streets and playgrounds
Involves:

-    Friday run of 10 streets approx.; 4-5kms of walking

-    Saturday run of shops approx. and public places

-     Manual sweeping using broom

-    Shovelling of litter

-    Clean gutters and footpaths

-    Use backpack blower

-    Utilise pan to remove litter

-    Shovel excess sands back into sand pits and off pathways in playground areas

-    Pick up and remove dumped rubbish with varied weights

-    Return larger rubbish to the yard and sort the items

-    Weight of the handheld blower: 4.2kg empty; 5 kg full

-    Weight of the backpack blower: 10.6kg empty; 12 kg full

Frequency
Frequent

Medium work

-    Constant dynamic standing and walking

-    Occasional sitting in truck

-    Occasional step climbing

-    Frequent cervical rotation/flexion

-    Bilateral sustained shoulder flexion at 20 degrees

-    Constant bilateral shoulder abduction/ adduction

-    Frequent bilateral shoulder flexion/extension with applying force

-    Occasional forward reaching from ground to shoulder height

-    Constant sustained bilateral gripping

-    Frequent stooping

-    Occasional bending and rotation

-    Occasional squatting

-    Occasional manual handling up to 10-15kg Rare manual handling >25kg

Task

High Pressure Cleaning of Reserves
Involves:

-    Once every fortnight on Tuesdays

-    Clean using high pressure cleaner which is mounted Drag the 20-30m hose

-    Occasionally shovelling before gurney

Frequency
Occasional

-    Occasional sitting to drive UTE between sites

-    Constant dynamic standing walking

-    Occasional stair climbing

-    Frequent cervical rotation/flexion

-    Constant elbow flexion and shoulder forward flexion

-    Sustained moderate bilateral gripping at waist height

-    Constant pulling forces

-    Occasional bilateral shoulder

-    flexion/extension with applying force

-    Occasional stooping and bending

-    Frequent lumbar rotation

-    Rare manual handling up to 10kg - Frequent manual handling <5kg

1. In his statement Mr Lennon remarked that the report from Pinnacle Rehab did not fully capture the dynamics and complexity of his work on a daily basis. He said there was no roster in place and the duties he was required to perform were up to his supervisor to organise.[11]

   [11] ARD page 4.

2. Mr Lennon noted pain and discomfort in his left hip which began he said “on or around early to mid September.”[12] He noted that he would feel a “grating sensation” in his left hip and he ignored it to begin with hoping it was just a strain but his pain began to worsen and he struggled at work and he had great difficulty performing his duties.

   [12] ARD page 4[19].

3. Mr Lennon consulted with his GP, Dr Merey on 29 September 2020. He then described that he had conservative treatment and was finally referred to see Dr Chia, an Orthopaedic Specialist. At Dr Chia’s recommendation Mr Lennon underwent numerous sessions at North Curl Curl Physiotherapy and also did daily exercises at home without improvement.

4. When he saw Dr Chia on 10 November 2020 he was advised that since physiotherapy did not assist, surgery was the next step.

Dr Sam Chia

1. Dr Chia reported to Dr Merey on 13 October 2020[13].  He took a history of the onset of pain over two months without any particular incident or injury but with symptoms deteriorating. He recommended physiotherapy at that stage.

   [13] ARD page 30.

2. On 10 November 2020[14] he noted that Mr Lennon was “really struggling with his hip” despite diligently applying his physiotherapy and exercise programs. He advised hip replacement surgery on that date and copied in the insurer.

   [14] ARD page 31.

3. On 25 November 2020, in response to a number of questions from the insurer, Dr Chia advised that Mr Lennon was suffering from a severe disease condition. He said:

   “….

   5) My understanding is that Peter's work with the council involved heavy manual labour. If this is the case then his work is clearly a substantial contributing factor and has likely led to him requiring a hip replacement earlier than otherwise expected. Peter has no other risk factors for osteoarthritis (e.g. family history or previous injury).”

Mr Anthony Cox

1. Mr Anthony Cox was the Area Coordinator for the Manly Cleansing Team and he made a statement on 23 October 2020. He gave evidence as to Mr Lennon’s weekly routine and described Mr Lennon’s “typical duties” throughout the week, although not limited to what he then described. The description involved a lot of driving and picking litter, using a long handled pan and broom, use of a hand blower, the requirement to clean BBQ ovens and empty grease traps, shovelling small amounts of sand from the BBQ to council areas, replacing dog waste bags in the waste bag dispenser or being placed on the street truck driving to various locations to pick up dump waste from kerbsides where a mechanical lift was available on the back of the truck for heavier items.

2. Mr Cox noted that all members of staff were required to walk some distances “as the jobs are outdoor based and walking is mandatory”[15].

   [15] Reply page 16.

Mr Richard Li

1. The respondent also lodged an email dated 7 October 2020 from Mr Richard Li, who was the Manager of Cleansing Services with the respondent. He confirmed that Mr Lennon’s job was varied but stated that there was nowhere in the job where a staff member was required to walk 17 kms a day. He allowed that there might be driving over that distance, but said even if there was a lot of walking it was mixed with driving, stopping and having a break every now and then[16].

   [16] Reply page 17.

Dr Merey

1. I have discussed Dr Merey’s evidence above. Of relevance to the substantive case as well is an entry dated 29 September 2020:[17]

   “1 only could work 4 hs today

   2 needs referral to dr Chia,

   Reason for contact

   Hip pain.”

   [17] ARD page 45.

2. Under the word “Actions” Dr Merey entered:

   “2 working at NB council
   every day walking 17 kms
   certainly contributing to his hip pain, certainly”

Associate Professor Nigel Hope

1. As indicated, the applicant retained A/Prof Hope as his medico-legal specialist.

2. On 15 February 2021 A/Prof Hope took a history that Mr Lennon had been working for 23 years as a labourer for the respondent which “involves heavy physical work including sweeping, shovelling, and rubbish pickup (cleaning of recreational reserve) in addition to using a hand held and backpack blower. 17 kms of walking was required approximately each day.”[18]

   [18] ARD page 14.

3. A/Prof Hope said:[19]

   “The injury resulted from the nature and condition of employment with Northern Beaches Council. The left hip had pre-existing osteoarthritis which was not symptomatic, not investigated, not diagnosed and not treated. Lower limb heavy overuse whilst sweeping, shovelling, picking up rubbish and using a blower caused permanent symptoms in the left hip. Therefore, work is deemed to have caused the left hip condition.”

   [19] ARD page 16.

1. A/Prof Hope was asked whether Mr Lennon’s employment with the respondent was the main contributing factor by way of aggravation, exacerbation, acceleration or deterioration of a pre-existing condition.

2. A/Prof Hope said:[20]

   “This is a permanent aggravation of pre-existing osteoarthritis. Left hip osteoarthritis was present but was not symptomatic, not investigated, not diagnosed and not treated. Work-related tasks caused permanent symptoms. Work is therefore deemed to have 'caused' the condition.

   [20] ARD page 16 – 17.

1. A/Prof Hope had before him the opinion of Dr Bruce, on whose report liability appears to have been denied. A/Prof Hope agreed with Dr Bruce that there was a marginal displacement of the epiphysis which had been asymptomatic all Mr Lennon’s life.

2. A/Prof Hope again repeated that the resultant osteoarthritis had not been symptomatic, had not been investigated, had not been diagnosed, and had not been treated. He said:[21]

   “…… so whatever the cause of the osteoarthritis it was not apparent until it was permanently aggravated by a well-described group of work related tasks”.

   [21] ARD page 17.

3. A/Prof Hope thought that at best Mr Lennon could do permanent suitable duties with a sitting limit of 15 minute, a standing limit of 20 minutes and a walking limit of 20 minutes.

Dr Greg Bruce

1. As also noted, Dr Greg Bruce, Orthopaedic Surgeon, reported to the respondent on 4 December 2020.  Dr Bruce relied on the “Statement of Duties” which I have referred to above from Mr Cox. Quite fairly, Dr Bruce asked Mr Lennon to read it and comment on it.
   Mr Lennon said he did not agree with the assessment of the physicality of the work and he thought that the statement underestimated the vigorous nature of the duties he was required to do. He said there were many aspects not listing such as using a heavy broom, picking up furniture and walking 10 – 15 kms per day.

2. Dr Bruce said[22]:

   “He felt that, overall, his work duties were more physical that described in the document though he agreed that the document did identify the specific duties of his work”.

   [22] Reply page 2.

3. Dr Bruce also noted that he was told that there was an analysis report prepared four weeks prior to the appointment that might describe his duties more accurately. I assume that was a referral to the Pinnacle Report of 10 December 2020.

4. Dr Bruce took a history that Mr Lennon’s pain commenced in early September 2020 when
   Mr Lennon awoke one morning with significant pain in the trochanteric region of his left hip.  He took a history that Mr Lennon consulted Dr Merey a few weeks after the onset of pain.

5. Dr Bruce observed that Mr Lennon’s description of his pain was typical of osteoarthritis of the hip being constant, severe and deep inside the hip.

6. Dr Bruce had available x-ray report of 28 September 2020 which showed the thinning of the articular cartilage.  He said:[23]

   “The most significant finding on the x-rays was evidence of previous minor slip of the upper femoral epiphysis that has resulted in incongruity of the hip joint with mismatch of placement of the head of femur within the acetabulum. This is an event that frequently results in cam-type femoroacetabular impingement and osteoarthritis in the long term.”

   [23] Reply page 5.

7. In his opinion Dr Bruce said:[24]

   “Peter Lennon has early osteoarthritis of his left hip that is a result of anatomical abnormality of the hip because of incongruity that has predisposed him to early osteoarthritis. The precipitating event was probably a superior femoral epiphysis slip that occurred during adolescence.”

   [24] Reply page 6.

8. Dr Bruce said:

   “He has early symptomatic osteoarthritis of the left hip secondary to anatomical abnormalities in the left hip, specifically altered the position of the old femoral epiphysis resulting in deformity of the neck and head of the femur and causing incongruity of the hip resulting in femoroacetabular impingement and long term osteoarthritis of the hip.”

9. Dr Bruce found Mr Lennon to be a consistent historian. He noted that Mr Lennon’s belief that his conditions were as a result of his work duties was understandable, but a misconception by “non-medical person without knowledge of the underlying cause”.  He said:[25]

   “This is not a work-related injury. It is a naturally occurring condition. The pathology pre-existed his commencement of work with Northern Beaches Council and was asymptomatic. It has progressed to symptomatic osteoarthritis because of the anatomical abnormalities on the hip. This would have occurred irrespective of his work duties.”

   [25] Reply pages 6 – 7.

10. Dr Bruce thought that the anatomical abnormality of the hip most likely occurred during adolescence. Dr Bruce said that the condition was not consistent with a work related injury. He said that there was no history of the specific injury, noting:

    “…..He associates all his symptoms with the physical nature of his work duties. In fact the pathology and present symptoms are because of altered anatomy of the hip most likely secondary to previous minor slip of the femoral epiphysis.”

11. When asked whether employment was a main or substantial contributing factor to
    Mr Lennon’s condition, Dr Bruce said:[26]

    “No. His employment may be a minor contributing factor to the severity of his symptoms. It has not caused the pathology. The main or substantial contributing factor is the abnormal anatomy of his hip joint with altered position of old femoral epiphysis relative to the neck of femur.”

    [26] Reply page 7.

12. As to whether the proposed surgery was reasonably necessary, Dr Bruce said:[27]

    “Left total hip replacement is indicated for relief of his painful symptoms. This is treatment for a naturally occurring musculoskeletal condition and is not related to his employment with council. The employment with council can cause increase in his symptoms (ie increased severity of pain) but has not caused the underlying pathology with bony abnormality of the left hip joint resulting in secondary osteoarthritis.”

    [27] Reply page 8.

13. Dr Bruce agreed later in his report that only a total hip replacement would provide the pain relief sought by Mr Lennon.

14. Dr Bruce explained his opinion further in making further comments. He said:[28]

    “Mr Lennon is convinced that the physical nature of his work duties has caused osteoarthritis. It should be noted that physical activity can aggravate the symptoms of osteoarthritis and, under some circumstances, can increase the degree of pathology. However, it is not a precipitating or primary cause of osteoarthritis and is not the 'main contributing factor. Evidence for this is the fact that Mr Lennon's right hip is anatomically normal, has not proceeded to osteoarthritis and is virtually asymptomatic and there were no physical signs of osteoarthritis. The left hip has deteriorated because of the underlying abnormal anatomy.”

    [28] Reply page 9.

SUBMISSIONS

1. Mr Beran submitted that the applicant must fail because there is “no real evidence” as to the actual work Mr Lennon was required to do.  Mr Beran emphasised that the injury was to the left hip and that none of the work identified in any of the material was relevant to Mr Lennon’s hip pain.  He addressed Mr Lennon’s statement, and observed that there was no reference in Mr Lennon’s remarks about how activities were affecting his left hip in particular, and there was also a generality about his evidence that was not particular enough to satisfy the applicant’s onus.

2. Mr Beran referred to the statement of Mr Cox which was more detailed in the list of duties
   Mr Lennon was required to do. Mr Beran emphasised that the work involved using a long handled broom and that there was no requirement to bend over.

3. I was taken to the clinical notes by Mr Beran, who submitted in particular that the applicant was careful when he visited Dr Merey to ensure that if one of his complaints was connected with his work activity, such was noted. The basis for that submission was an entry dated 8 November 2019[29] which was to do with painful feet which Mr Lennon was experiencing at the time, and added to that entry were the words “walking 12 kms daily at work”.

   [29] ARD page 46.

4. In contrast Mr Beran submitted the entry of 28 September 2020, which he alleged was the time when Mr Lennon first became symptomatic but did not mention any work conditions at all.   Mr Beran submitted that it was significant that Dr Merey had not noted that there was a work component in the claimant of the pain of left hip.

5. Mr Beran submitted that I would prefer Dr Bruce’s opinion over that of A/Prof Hope. 
   A/Prof Hope’s opinion was an ipse dixit, it was claimed, as he failed to explain how the 23 years of arduous work had aggravated Mr Lennon’s hip. Dr Bruce on the other hand, whilst agreeing that the proposed surgery was indicated, said that whilst the work with the Council caused an increase in Mr Lennon’s symptoms, it did not cause the underlying pathology. 
   A/Prof Hope’s opinion in his second report was not sufficiently clear to satisfy the applicant’s onus.

6. Mr Beran argued that Dr Bruce’s opinion that employment was not a major contributing factor to the severity of Mr Lennon’s symptoms, and that the main contributing factor was the anatomical abnormality seen in the imaging, was convincing.  A/Prof Hope’s view that the lower limb heavy overuse was the cause of the symptoms confused “correlation with causation,” Mr Beran submitted. Applying the common sense approach I would accept
   Dr Bruce’s opinion.

7. In the alternative Mr Beran submitted that the applicant had not established that Mr Lennon’s employment made a material contribution to his need for surgery. I would accept Dr Bruce’s opinion that the aggravation would have happened in any event, whether Mr Lennon had been employed in the Council or not and applying Murphy v Allity Management Services Pty Ltd[30], I would find that the employment caused no more than a minor exacerbation.

   [30] [2015] NSWWCCPD 49

8. As to Mr Lennon’s ability to earn Mr Beran again submitted that the applicant bears the onus, and the contrast between the opinion contained in the medical certificates that there was no current work capacity and the opinion of Dr Bruce that Mr Lennon was able to do light duties established that the onus has not been met.

9. Mr Hickey made a number of submissions which accord with my view of the issues. They are incorporated in my discussion.

DISCUSSION

1. It is common ground that Mr Lennon suffers from an osteoarthritic pre-existing condition arising from a marginal displacement of the epiphysis. A/Pro Hope however distinguished between the cause of the osteoarthritis and the cause of Mr Lennon’s injury, which was the aggravation of that condition. 

2. Dr Bruce did not direct his attention to the effect of the aggravation in any detail. The emphasis of his opinion was that the underlying condition was not work related, which is a proposition which is not in question. Dr Bruce accepted that “under some circumstances” activity can aggravate osteoarthritic symptomatology, but beyond making that general comment he did not consider whether Mr Lennon’s aggravation had indeed been caused by his activity nor whether that aggravation had ever ceased.

3. A/Prof Hope considered that aspect of Mr Lennon’s injury. He said, on more than one occasion, that the osteoarthritis until September 2020 was not symptomatic, not investigated, not diagnosed and, obviously, not treated. His opinion was that regardless of the cause of osteoarthritis, it did not become apparent until it became permanently aggravated by the group of work related tasks which A/Prof Hope accepted was responsible for the aggravation. He was unambiguous in attributing the cause of the permanent symptoms in the left hip to the sweeping, shovelling, picking up rubbish and using a blower, which were activities identified as part of Mr Lennon’s daily activities.

4. The evidence as to the nature of Mr Lennon’s work was compelling, notwithstanding
   Mr Cox’s attempt in his statement, and Mr Li’s email, to downplay the walking aspect. Mr Cox stated that his description of Mr Lennon’s duties was not limited to the activities that he set out in Mr Lennon’s “statement of duties,” and he acknowledged that walking was an integral part of the job.  Mr Lennon was insistent that he walked about 17 kilometres a day, and both Mr Cox and Mr Li were equally insistent that he did not.  I do not think much turns on the actual distance Mr Lennon was required to walk, as the evidence is consistent between all parties that Mr Lennon was required to do many more activities than simply walking.

5. The Pinnacle Rehab report thoroughly described Mr Lennon’s duties, which included frequent bending and squatting in some tasks and occasional bending and squatting in others.  I accept Mr Lennon’s evidence that the description by Pinnacle Rehab did not fully capture the dynamics or complexity of his duties, and I accept that Mr Cox’s description of
   Mr Lennon’s duties in the working week were not intended to be an exclusive description of all Mr Lennon’s tasks. Mr Lennon’s description in his statement of 20 March 2021 was the most comprehensive description in the evidence, and I accept his account. 

6. I reject the submission that Mr Lennon’s description of his duties (and those of Pinnacle Rehab, Mr Cox and Mr Li) did not sufficiently connect the aggravation of his left hip symptoms to them.  His duties were arduous, and required a great deal of mobility and fitness.  As a matter of common sense the duties described would have involved constant involvement of both hips, and would have aggravated the osteoarthritic condition caused by the underlying unsuspected injury to the epiphysis from Mr Lennon’s adolescence.

7. Moreover, the submission that A/Prof Hope’s opinion should be regarded as an ipse dixit is also rejected.  It is not correct that A/Prof Hope failed to relate the nature of Mr Lennon’s work to the onset of his left hip injury.  Mr Beran, with respect, has turned a blind eye to A/Prof Hope’s opinion that “lower limb heavy overuse whilst sweeping, shovelling, picking up rubbish and using a blower caused permanent symptoms in the left hip.”

8. I also reject the submission that Mr Lennon’s employment was not the main contributing factor to his injury. There is no disagreement between the views of A/Prof Hope and
   Dr Bruce that the cause of Mr Lennon’s symptoms is the osteoarthritic condition in his left hip becoming symptomatic.  Dr Bruce’s diagnosis however was concerned with the cause of
   Mr Lennon’s underlying osteoarthritic condition, about which there is also no disagreement.  

9. Dr Bruce’s finding that Mr Lennon’s employment duties were not the cause of the osteoarthritis has not been the subject of challenge. Neither has his finding that this condition was asymptomatic when he commenced employment with the respondent 23 years earlier.  It is not in contest that the osteoarthritic symptoms developed whilst Mr Lennon was performing his duties. Dr Bruce however found that Mr Lennon’s present symptoms were because of the altered anatomy of the hip, most likely secondary to the previous minor slip of the femoral epiphysis. Dr Bruce allowed that employment might have been a minor contributing factor to the severity of Mr Lennon’s symptoms, but he advised that the main contributing factor was the abnormal anatomy of the hip joint.

1. In this respect, Dr Bruce has erred, with respect, as he has asked himself the wrong question.

2. The relevant injury under consideration is defined by s 4(b)(ii) of the 1987 Act, which provides that the definition of “injury” includes, relevantly:

“(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,..”

1. Thus the question regarding main contributing factor relates to the aggravation injury as defined in s 4(b)(ii).

2. I accept A/Prof Hope’s oft expressed opinion that Mr Lennon’s underlying osteoarthritic condition was “not symptomatic, not investigated, not diagnosed and not treated.”
   A/Prof Hope’s opinion that the cause of the osteoarthritis was not apparent until it was permanently aggravated by his employment, I accept. The facts of Mr Lennon’s employment are consistent with the aggravation of his previously asymptomatic osteoarthritic condition. 

3. Dr Bruce’s enquiry into whether employment had been the main contributing factor to the development of the osteoarthritis itself was thus incorrect. The enquiry was whether employment had been the main contributing factor to the aggravation of the underlying osteoarthritis.  That aggravation has caused Mr Lennon’s symptoms and need for treatment, and employment, in the form of the arduous nature of 23 years of service, is the main contributing factor to his injury.

4. I do not accept Dr Bruce’s opinion that the osteoarthritis would have become symptomatic irrespective of Mr Lennon’s work duties.  It is speculative, and is of little weight when compared to the established reality that Mr Lennon’s employment spanned 23 years and was of a nature that rendered his underlying condition symptomatic in fact. 

5. I note that at various points in the evidence Mr Lennon’s first attendance on Dr Merey has been described as occurring on 29 September 2020. I regard the misstatement as being of no consequence, as Mr Lennon attended on both 28 and 29 September 2020.

6. Mr Beran suggested that because on 28 September 2020 Mr Lennon was not recorded as relating his employment to the onset of his pain, I could therefore find that employment was not. There are two problems with this submission.

7. Firstly it is well established that caution should be exercised when making findings of fact that are based upon the clinical notes of health professionals, as it is axiomatic that busy health professionals – GPs in particular – are more concerned with treating and curing their patients than noting every detail they are told.[31]

   [31] See Mason v Demasi [2009] NSWCA 227; Qannadian v Bartter Enterprises [2016] NSWWCCPD 50.

8. Secondly in her note the following day, 29 September 2020, Dr Merey noted that Mr Lennon was employed by the Council and was walking 17 km per day. She noted that Mr Lennon could only work for four hours that day.  Further, in her report of 5 February 2021, Dr Merey said that on that day Mr Lennon was complaining of pain in the left hip, and that he could not stand or walk. She recorded that he had to stop working that day. It is not difficult to infer that Dr Merey related Mr Lennon’s symptoms to his work with the Council. 

9. Mr Beran’s reliance on Murphy did not assist his cause.  Employment is clearly a material factor in the need for surgery.

10. As to Mr Lennon’s ability to earn, A/Prof Hope stated in his report of 15 February 2021:[32]

    “Pre-injury duties are permanently inappropriate.

    Permanent suitable duties are required with a sitting limit of 15 minutes, standing limit of 20 minutes and a walking limit of 20 minutes.”

    [32] ARD page 18.

1. Dr Bruce found that Mr Lennon was fit for light duties with a mixture of activities for a normal working week. 

2. Applying the provisions of s 32A of the 1987 Act, Mr Lennon has worked with the respondent since 1997. He was born in 1964 and I assume he has been a labourer all his working life.  I note there is no history of what he was doing prior to his employment with the Council.  I assume that he has no more than education beyond his school years, and no work experience beyond the type of his duties with the respondent.  His injury has rendered him unable to do his pre-injury duties. 

3. If Mr Lennon could find suitable duties as described by A/Prof Hope and Dr Bruce, I doubt whether any employer would be prepared to pay more than a nominal wage. The terms of the opinions as to capacity are such as to raise the question as to whether they are of such artificiality that the dicta of DP Roche in Wollongong Nursing Home Pty Ltd v Dewar^[33] should not be applied, but on consideration it is feasible that Mr Lennon could find employment that limits him to the standing, sitting and walking tolerances suggested by A/Prof Hope, and by implication, Dr Bruce. 

   [33] [2014] NSWWCCPD 55 at [60] and [63].

4. The PIAWE is $1,276.97. The s 36 discount rate of 95% yields $1,213.12, and that of s 37 at 80% yields $1,021.57.

5. Mr Lennon would be able to earn $12 per hour in such a restricted position, for a 38 hour week – a total of $456 per week.

6. Thus the award for weekly payments is:

   (a)    from 22 December 2020 to 29 December 2020 at the sum of $757.12,

   (b)    from 30 December 2020 to date and continuing at the sum of $565.57.

SUMMARY

1. Accordingly there will be an award for the applicant.  There has been no argument that the need for his left hip replacement is not reasonably necessary, and the respondent will pay for the costs of and associated with the proposed total left hip replacement surgery as recommended by Dr Chia.

2. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC charge.

1. Mr Lennon’s ability to earn will obviously be affected when he comes to surgery, the respondent will pay in the meantime the following sums:

(a)    from 22 December 2020 to 29 December 2020 at the sum of $757.12,

(b)    from 30 December 2020 to date and continuing at the sum of $565.57.