Longworth v Secretary, Department of Transport
[2022] NSWPIC 290
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Longworth v Secretary, Department of Transport [2022] NSWPIC 290 |
| APPLICANT: | Janice-Marie Longworth |
| RESPONDENT: | Secretary, Department of Transport |
| Member: | Rachel Homan |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for the costs of and incidental to a proposed total left knee replacement surgery; accepted lumbar spine injury in motor vehicle accident in March 2018; allegation of injury to left knee in the same event and/or consequential left knee condition due to falls as a result of lumbar symptoms; lack of contemporaneous evidence of knee injury; contradictory histories of whether knee condition due to falls; whether alternative treatment more appropriate; Held- award for the respondent on the allegation of left knee injury; applicant sustained a consequential left knee condition as a result of the lumbar injury; proposed surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the surgery. |
| determinations made: | 1. 1. Award for the respondent in respect of the allegation of injury to the left knee on 28 March 2018. 2. 2. Award for the applicant in respect of the allegation of a consequential condition at the left knee resulting from the injury to the applicant’s lumbar spine on 28 March 2018. 3. 3. The respondent to pay the costs of and incidental to the left total knee replacement surgery proposed by Dr Paul Jarman on 13 May 2021, pursuant to s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
1. Ms Janice-Marie Longworth (the applicant) was employed by the Secretary, Department of Transport (the respondent) as a driving examiner.
2. On 28 March 2018, the applicant was injured when she was supervising a learner driver who was undergoing a driver's test. The driver applied the brakes suddenly, jolting the applicant. The applicant alleges that she sustained injury to a number of other body parts in the same event including, her lumbar spine and left knee. In the alternative, the applicant alleges that as a result of her lumbar spine injury, she has had a number of falls resulting in a consequential condition affecting her left knee.
3. On 13 May 2021, the applicant’s orthopaedic surgeon, Dr Paul Jarman, sought approval from the respondent’s insurer for the applicant to undergo a robotic total left knee replacement surgery.
4. Liability for the proposed surgery was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 July 2021.
5. The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 19 January 2022. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for the costs of and incidental to the proposed left total knee replacement.
PROCEDURE BEFORE THE COMMISSION
6. The parties appeared for conciliation conference and arbitration hearing on 28 March 2022. The applicant was represented by Mr Stephen Hickey of counsel, instructed by Mr John Maguire. The respondent was represented by Mr John Gaitanis of counsel, instructed by Mr Rahul Balan. A representative from the insurer was also present.
7. At the commencement of the arbitration hearing, submissions were heard from both parties with respect to the admission of late documents pursuant to r 67(4) of the Personal Injury Commission Rules 2021. A determination was made and oral reasons for that determination given, declining to grant leave to the applicant to introduce a supplementary statement dated 24 February 2022, which had been lodged on 16 March 2022 but not served until after the conciliation conference had commenced. Other late documents were admitted in the proceedings as set out below.
8. After the interlocutory disputes regarding the documents were determined, there remained insufficient time to complete oral submissions. A timetable was established for the lodgement of written submissions. The parties were informed of my intention to determine the dispute on the materials before me at the conclusion of that timetable.
9. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
10. The parties agree that the following issues remain in dispute:
a. (a) whether the applicant sustained an injury and/or consequential condition to her left knee as a result of the accident on 28 March 2018; and
b. (b) whether the left total knee replacement proposed by Dr Jarman is reasonably necessary as a result of the injury.
EVIDENCE
Documentary Evidence
a.11. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) the ARD and attached documents;
c. (b) Reply and all attachments;
d. (c) WorkCover approval request, Dr Paul Jarman, dated 13 May 2021 (attached to the Application to Admit Late Documents lodged by the applicant on 16 March 2022);
e. (d) statement by the applicant, dated 21 November 2019;
f. (e) written submissions lodged by the applicant on 19 April 2022; and
g. (f) written submissions lodged by the respondent on 4 May 2022.
h.12. Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
a.13. The applicant’s evidence is set out in written statements made by her on 21 November 2019 and 5 September 2021.
b.14. In her first statement, the applicant described previous work injuries to her lower back and neck. These were treated conservatively with no time taken off work.
a.15. On 28 March 2018, the applicant was performing a driving test when the learner driver suddenly and forcefully applied the brakes and the car came to a complete stop. The applicant was twisted at the time to ensure that the driver was not going to collide with another parked vehicle whilst attempting to park. The applicant was thrown suddenly forwards and backwards into the seat and described pain in her lower back.
b.16. Over the next few hours, the applicant felt increasing pain in her lower back, neck and both shoulders.
c.17. The applicant consulted a general practitioner in Canberra whilst visiting family on 31 March 2018. The applicant saw her own doctor, Dr Broeders, on 15 April 2018. The applicant was experiencing pain in the lower back, shooting into her right leg. The applicant was referred for physiotherapy and prescribed analgesia.
d.18. As the applicant was not getting lasting relief from physiotherapy or medication, she was eventually referred to a specialist, Dr Cherukuri. Dr Cherukuri referred the applicant for further investigations including nerve conduction studies and x-ray. The applicant underwent a peri-radicular injection at L5 on 4 July 2018 which did not provide any relief.
e.19. The applicant was later referred to pain management specialist, Dr Ferris, who recommended facet joint injections. These made the applicant’s pain worse.
f.20. In March and April 2019, the applicant underwent steroid injections at L5/S1. Following the second injection, the applicant developed fevers and was admitted to the intensive care unit, at Shoalhaven Hospital as a result of discitis and septicaemia.
g.21. The applicant returned to Dr Cherukuri in May 2019 who recommended a spinal fusion. The applicant sought a second opinion from Dr Marc Coughlan, who also recommended a spinal fusion as the applicant had failed to obtain pain relief despite extensive conservative management.
h.22. In her second statement, the applicant disclosed a prior injury to the right knee, requiring surgery in 1997. The applicant had a good result from the surgery and was able to complete the 14 km City to Surf run in 2000.
23. The applicant said that when the accident occurred on 28 March 2018, both of her knees collided with dashboard of the car, causing bruising to both knees.
j.24. Following the accident, the applicant’s treatment was mainly focused on the injury to her lumbar spine. The applicant suffered from increasing trouble with the balance due to pain in her lower back and buttocks and loss of sensation in her legs. The applicant was referred for physiotherapy for her back and legs. By late 2018, the applicant was experiencing regular falls due to weakness in her legs and her back pain. The applicant did not experience falls prior to the accident and had good balance, sufficient to sail on a 22 foot boat without difficulty.
a.25. Due to the recurrent falls, the applicant and her husband decided it wasn’t safe for her to use the stairs in her house. The applicant was able to set up a small granny flat in the downstairs part of the house.
b.26. On 22 September 2019, the applicant suffered a more significant fall, which she described as follows:
“I was walking out through the sliding door at the back of our house and turned towards the right. I felt my lower back lock up again and shooting pain into my legs. My left knee then gave way and I fell forward landing heavily on my knees, then onto my left side. My back started spasming and my husband had to lift me from the ground and help me inside. I suffered lacerations to my feet and toes and both my knees were scraped and bruised.”
a.27. Following that fall, the applicant experienced increased pain in both knees.
b.28. The applicant underwent an interbody spinal fusion performed by Dr Coughlan on 7 May 2020. On 16 May 2020, two days after the applicant left hospital, she suffered another significant fall. The applicant was descending the stairs at home carefully when she felt a sudden sharp pain in her back, causing pain in her buttocks, right thigh and right knee. The applicant experienced a feeling of momentary lapse of coordination between her back and legs followed by an agonising jolt of pain through her back. The applicant fell downstairs, landing on her knees with outstretched arms and banging her head on the floor. The applicant was in too much pain to move and had to be helped up approximately 10 minutes later when her husband and son arrived home. Both of the applicant’s knees were grazed, swollen and aching. Following this fall, the applicant’s knee pain became worse.
c.29. The applicant spoke to her general practitioner about the falls and her knee pain and he requested that the insurer accept liability for injury to her knees. Liability was disputed.
d.30. The applicant saw orthopaedic surgeon, Dr Paul Jarman on 18 February 2021. Dr Jarman referred the applicant for MRI scans. An MRI of both knees was performed on 14 March 2021 and confirmed a meniscal injury to both knees.
e.31. Dr Jarman initially recommended that the injuries be managed non-surgically with physiotherapy. If there was no improvement after three months. The applicant would need surgical repair.
f.32. The applicant had another significant fall in early May 2021 whilst shopping at Coles. The applicant’s back locked up and left leg became weak, causing the applicant fall forward onto the ground. This caused the applicant’s pain in her knees to become even more severe. As a result of the weakness in the applicant’s legs and back pain, Dr Jarman recommended that the applicant should not walk without frame.
a.33. The applicant noted that Dr Jarman had recommended a left knee replacement. The applicant wished to proceed with the surgery recommended.
Incident / Hazard Report Form
a.34. An incident hazard report form completed by the applicant on 29 March 2018 described the accident on that date, the applicant said,
“My lower back. neck, left arm and knee were sore and a little stiff afterward.”
Treating evidence
a.35. A clinical record recorded by the applicant’s general practitioner, Dr Joris Broeders on 15 April 2018 noted:
“28th of march
2 weeks ago incident at work with a client
her back when learner driver hit the breaks suddenly while parking
injured her back
is driving examiner
saw GP in canberras on 31st while on easter holidays, wanted to do a CT scan, did not have money at the time, treated with analgesia, could not make claim for work cover because did not have a claim number
right lumbar back pain has not improved
radiatiates to right leg, up to knee, not beyond knee
…
no numbness or weakness legs
…
examination:
tender just right of L5
reduced ROM on flexion, extention, roation, latero flexion lumbar spine
afebrile
nomral and symmetrical strenght, reflexes lower limbs
generalised reduced sensibility to touch right lower limb
straight leg raise negative”
a.36. WorkCover certificates of capacity issued around this time diagnosed “lumbar back pain”.
b.37. On 16 May 2018, Dr Broeders reported:
“has had bilateral lumbar back pain
radiation to both buttocks and both knees”
a.38. Operation notes prepared by neurosurgeon, Dr Mark Coughlan, dated 7 May 2020, record that the applicant underwent an L3-4 and L4-5 anterior lumbar fusion at Prince of Wales Private Hospital.
b.39. Post-operative reports from Dr Coughlan noted slow progress and ongoing symptoms in the legs and buttocks. On 28 June 2020, Dr Coughlan noted:
“…she has also had a fall recently and back pain feels slightly worse after the fall.”
a.40. On 4 November 2020, the physiotherapist noted:
“Feels mobility has improved but not the pain – has had 3x falls since surgery and daily near misses (fell a lot prior to Sx)”
a.41. A physiotherapy record on 21 January 2021 noted:
“Reports 2x falls whilst out walking due to weak R leg”
a.42. On 24 February 2021, the physiotherapist noted:
“Fall last weekend. Due to R sided weakness – landed on knees and R shoulder
R/V with Dr Allin today – gym session only today”
a.43. An MRI of the left knee performed on 10 March 2021 was reported to show:
“Large areas of full thickness chondral loss. Patellofemoral abutment with underlying marrow oedema. Free edge fraying lateral meniscus with high-grade chondral loss lateral femoral condyle. Oblique tear body to posterior horn medial meniscus. Medial compartment cartilage preserved.”
a.44. The history noted in the MRI report was:
“Fall last year injuring knee and cervical spine”.
a.45. Orthopaedic and robotic knee surgeon, Dr Paul Jarman wrote to the applicant’s general practitioner on 13 May 2021. Dr Jarman noted the work injury in 2018 and recorded that the applicant banged both knees against the dashboard in that event.
b.46. With regard to the applicant’s knees, Dr Jarman said:
“With regards to her knees the left is worse and she falls as a result of a combination of her knees and back and she really has no confidence in either knee. She has been having physiotherapy with Bill Stahlhut as suggested but is not making any improvement at this stage. She feels that the left knee range of motion has improved but general use is not improved especially her knees.”
a.47. Dr Jarman noted that the applicant had been approved for a walking aid but had not received one as yet. The applicant had marked crepitus coming from the left knee. The applicant was noted to be keen on intervention for her knee and shoulder problems.
b.48. Dr Jarman recommended a platelet rich plasma injection to the applicant’s right shoulder and right knee. With regard to the left knee, Dr Jarman considered the applicant was unlikely to improve without total knee replacement and proposed to do this robotically.
c.49. The report of an x-ray of both knees performed on 13 May 2021 noted severe patellofemoral joint space loss and minor narrowing of the medial tibiofemoral compartment at the applicant’s left knee.
d.50. On the same date, Dr Jarman prepared a WorkCover approval for a robotic total knee replacement. The estimated fee was $9,778.50.
e.51. Dr Jarman prepared a report for the applicant’s solicitor, dated 10 January 2022. Dr Jarman took a history of the applicant hitting her knees on the dash in the event on 28 March 2018. The applicant also reported a further injury to her knee whilst recovering from her back surgery in May 2020. The applicant said the fall was because her legs were not working well. The applicant said she had multiple falls and did not feel 100% stable when walking.
f.52. Dr Jarman gave the opinion:
“She has entrenched patellofemoral osteoarthritis primarily but there are chondral changes throughout the joint. It is reasonable to think that this has been precipitated by her initial injury in March of 2018.
Jan certainly had reduced function between the injury in March of 2018 and May 2020. There is no doubt that the fall two days post operatively could have contributed to this further deterioration. She also said that her surgeon, Dr Cofflin had made comment that the length of time between injury and surgery had potential to reduce the effectiveness of the outcome of her spine surgery.
The left knee arthroplasty is required owing to the injury sustained on 28.3.2018 and b. there is a further material contribution likely due to the fall following her lumbar spine surgery.”
Dr Cochrane
a.53. Attached to the ARD is a historical medicolegal report prepared by neurosurgeon Dr Neil Cochrane on 20 November 2019 in relation to previous proceedings in relation to the applicant’s lumbar spine.
a.54. Dr Cochrane took a history of the treatment of the applicant’s lumbar injury including:
“By the end of the 2018 calendar year, Ms Longworth was feeling sluggish and lethargic with flu-like symptoms and nausea which she ascribed to her steroid injections. She had an episode of fever and delirium. She was admitted to hospital and diagnosed with septicaemia. She believes the working diagnosis was discitis. She was quite unwell, spending 10 days in intensive care and a further one week in hospital. Ms Longworth, however, believes the MRI scan of the lumbar spine did not in fact confirm a spinal source of infection such as discitis nor osteomyelitis.”
a.55. Dr Cochrane noted that the applicant’s current symptoms included:
“Ms Longworth describes neurological symptoms of episodic and recurrent falls and slips. She has fallen outside and fallen on the stairwell at home. She feels like her low back "doesn't work" and her legs feel somewhat unsteady or weak and clumsy consequently. Occasionally she has had to use a walking stick outside of the home.”
Dr Bentivoglio
a.56. Attached to the reply are historical medicolegal reports prepared by neurosurgeon, Dr Peter Bentivoglio, dated 4 April 2019 and 19 September 2019.
b.57. Dr Bentivoglio took a history of the injury on 28 March 2018 and noted that as a consequence, the applicant developed lumbar pain radiating into both buttocks and both hips and a twisting injury to the neck and right shoulder. Dr Bentivoglio took no history of an injury to the knees in the event. Dr Bentivoglio expressed the opinion that most of the applicant’s presentation was related to pre-existing degenerative disease but accepted that that disease had been aggravated by the work injury.
c.58. In his second report, Dr Bentivoglio considered that the applicant’s lumbar surgery would have been required anyway about the same time in the same stage of her life had she sustained the injury at work or not.
Certificate of Determination WCC 6164/19
a.59. The applicant previously brought proceedings in the former Workers Compensation Commission (WCC) seeking compensation pursuant to s 60 of the 1987 Act for the costs of and incidental to the anterior lumbar interbody fusion surgery recommended by Dr Coughlan, as well as medicinal cannabis treatment. In a Certificate of Determination issued on 26 February 2020 by Arbitrator McDonald, the applicant obtained awards in her favour.
Dr Bodel
a.60. The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr James Bodel, dated 11 October 2021 and 28 October 2021.
a.61. In his first report, Dr Bodel took a history of the injury on 28 March 2018 as involving:
“There was then a sudden jerking movement, which may have been the ABS braking system, and she was thrown around from side to side and front to back. She hit her knees on the dashboard, strained her left shoulder which was under the seatbelt, and also injured her lower back.”
a.62. Dr Bodel noted the subsequent treatment of the applicant’s lumbar spine injury, including, the applicant’s response to the injections administered by Dr Ferris:
“She then saw Dr Paul Ferris, Pain Specialist, and he gave her block injections and an epidural injection, which was of no lasting benefit. She states that she felt sick and developed a rash, which appeared to be an allergy to the cortisone, and she felt generally unwell. She started to vomit and became disorientated and was hallucinating. She had to go the Accident and Emergency Centre and it was felt that she may have developed a discitis in the back or septicaemia.”
a.63. Dr Bodel recorded that the applicant had been told that she would need bilateral knee replacements.
b.64. Dr Bodel recorded the previous history of injury to the right knee in 1997 and noted a motor vehicle accident in 2002.
c.65. The applicant complained of continuing pain in both knees. Any attempt to kneel, squat or climb aggravated the knee pain. The applicant complained of discomfort at the front of both knees and a restricted range of knee movement was recorded.
d.66. Dr Bodel noted the MRI scan of the left knee and reports from a number of specialists including Dr Jarman.
e.67. Dr Bodel gave the following opinion on causation:
“This lady's pathology in all areas began with the injury on 28 March 2018. The lumbar spine injury was not a major feature at that time but became a major feature after the septicaemia, which was a consequence of the original injury on 28 March 2018.”
a.68. In his second report, Dr Bodel was asked whether the applicant’s left knee condition was the result of injury on the date of accident or falls suffered by the applicant due to her lumbosacral injury. Dr Bodel responded:
“This lady has suffered an injury to her left knee as a result of the motor vehicle accident that occurred during her day's work on 28 March 2018. She has, at the very least, suffered an aggravation, acceleration, exacerbation and deterioration of some underlying degenerative disease in the knees and aggravation has been caused by this work injury.
…
She did have a number of other falls, particularly after her spinal surgery in May 2020, and there is evidence that she has probably suffered a temporary aggravation of that pathology in those subsequent events. There is no indication that any additional structural material abnormality has persisted with those falls following her lumbosacral spine injury and surgery."
a.69. Dr Bodel was asked whether the treatment proposed by Dr Jarman was reasonably necessary as a result of the accident on 28 March 2018 and/or any condition consequential to the accident.
b.70. Dr Bodel responded:
“The treatment proposal from Dr Jarman in the form of a left knee arthroscopy and probable total knee replacement are reasonably necessary treatment for the management of the injuries caused by accident on 28 March 2018.”
Dr Rimmer
a.71. In these proceedings, the respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Stephen Rimmer, dated 19 March 2021, 25 June 2021 and 7 October 2021.
b.72. In his first report, Dr Rimmer took a history of the applicant’s left knee being injured at the time of the accident on 28 March 2018. Dr Rimmer noted the history of treatment to the lumbar spine as well as a fall at home, two days following the lumbar spine fusion.
c.73. At the left knee, the applicant described intermittent pain at the anterior aspect. There was no clicking, swelling, locking or instability. Examination of the left knee showed neutral and symmetrical alignment, normal gait. Quadriceps musculature was symmetrical, there was no effusion and no joint line tenderness. Range of motion was 0 to 120° with some minor discomfort.
d.74. Dr Rimmer considered the MRI of the left knee, dated 10 March 2021.
e.75. Dr Rimmer diagnosed a resolved soft tissue injury to the left knee. Dr Rimmer noted that the applicant was adamant that she injured her left knee at the time of the initial injury.
f.76. In his second report, Dr Rimmer was asked whether interventions which had been requested were reasonably necessary as a result of the injury on 28 March 2018. In relation to the left knee, Dr Rimmer stated:
“With regard to the total knee replacement of her left knee, I do not believe she warrants that given her essentially normal investigation.
…
First of all, I would like to highlight the clinical examination of her left knee at the time of my assessment in March 2021 was essentially normal. She alleges that she has had no conservative management. My approach to her would be a six- to eight-week course of physiotherapy concentrating on strengthening the knee in conjunction with an ultrasound-guided cortisone injection.”
a.77. Dr Rimmer considered the applicant was an ideal candidate for an ultrasound guided cortisone injection.
b.78. In his final report, Dr Rimmer was provided with clinical notes and asked whether his previous views had altered. Dr Rimmer noted that the general practitioner’s clinical notes referred on 18 March 2009 to the applicant suffering from Meniere’s Disease, which in general terms made an individual susceptible to recurrent falls.
c.79. Dr Rimmer confirmed his view that any injury to the left knee had resolved.
Applicant’s submissions
a.80. The applicant confirmed that both an injury pursuant to s 4(a) of the 1987 Act was relied upon in addition to the consequential effects of the lumbar spine injury, causing right-sided leg weakness and falls onto the left knee.
b.81. The applicant referred to the evidence of a left knee injury, set out in her statement and the incident/hazard report form. The applicant also noted the histories of an injury, set out in the reports of Dr Jarman and Dr Bodel. The history of treatment to the lumbar spine was noted, including the adverse reactions to injections administered to the lumbar spine. The contemporaneous reports of falls associated with loss of power in the right leg and symptoms in the lumbar spine were also observed.
c.82. The applicant submitted that Dr Rimmer’s opinion carried less weight than those of the treating surgeon, Dr Jarman and Dr Bodel.
d.83. Dr Rimmer did not deal satisfactorily with the radiological findings at the left knee or consider the possibility that some of the left knee pathology, particularly the meniscal tear and severe chondral damage, may have been caused or aggravated by either the event on 28 March 2018, or the subsequent falls. Dr Rimmer simply gave the opinion that the left knee injury was a resolved soft tissue injury.
e.84. The applicant noted inconsistencies in Dr Rimmer’s reports in relation to his opinion that despite the injuries resolving the applicant would never be able to return to pre-injury duties. In opining that the total left knee replacement surgery was not warranted, Dr Rimmer referred to the “essentially normal investigation” without addressing the extensive pathology seen on the MRI scan of 10 March 2021.
f.85. Dr Rimmer recommended further treatment of the applicant’s knee in the form of an ultrasound guided cortisone injection. The applicant submitted that this recommendation was unreasonable given the applicant’s previous reaction to injections including her emergency admission to Shoalhaven Hospital following the injections administered by Dr Ferris.
g.86. The applicant submitted that the opinion of treating surgeon, Dr Jarman would be preferred. The applicant sought findings that the applicant suffered an injury to her left knee on 28 March 2018 to which employment was a substantial contributing factor. Further, as a result of injury to the applicant’s lumbar spine, the applicant sustained a consequential condition to the left knee. As a result of the injury and consequential condition it was reasonably necessary that the applicant submit to total left knee replacement surgery as proposed by Dr Jarman.
Respondent’s submissions
a.87. The respondent submitted that it was uncontentious that the applicant sustained an injury to her back on 28 March 2018. The claim for injury to the left knee remained in dispute.
b.88. The respondent noted that the applicant insisted to Dr Rimmer that her left knee was injured in the accident and it was not a consequential condition. This was consistent with the histories provided to Dr Bodel and Dr Rimmer. Dr Jarman’s assertion that subsequent falls post surgery may have contributed to the further deterioration of the knee was an untested and bare assertion.
c.89. The respondent relied on the report of Dr Rimmer, who diagnosed a soft tissue injury to the left knee, which had since resolved. Dr Rimmer did not consider the knee replacement was warranted. Given the normal investigations, Dr Rimmer recommended a course of physiotherapy and ultrasound guided cortisone injection, noting his examination did not reveal any abnormalities.
d.90. Despite Dr Rimmer’s opinion, the respondent did not concede that the left knee was injured on 28 March 2018. The contemporaneous evidence indicated plausibly that it was not.
e.91. The respondent submitted that Dr Bodel and Dr Jarman did not deal with Dr Rimmer’s opinion that examination of the left knee was essentially normal.
f.92. The respondent noted that in her statement of 21 November 2019, the applicant failed to make any reference to her left knee injury. The history taken by Dr Bentivoglio on 4 April 2019 also omitted reference to the knee. The clinical record made by Dr Broeders on 15 April 2018 referred to a number of symptoms in body parts but not the knee. There was a consistency between the applicant’s original statement and the contemporaneous evidence in that the applicant failed to refer to her knees being injured in the subject motor accident.
g.93. The respondent drew attention also to a number of records made by the applicant’s general practitioner, disclosing symptoms of back ache and radiological investigations of the lumbar spine pre-dating the work injury. The applicant had received significant treatment after the work injury, but there was no contemporaneous complaint in relation to the left knee. The respondent submitted that the Commission would not find injury to the left knee in all the circumstances.
h.94. The respondent submitted that the applicant had later reconstructed a version of events in her more recent statement. Despite her evidence of falls, the applicant did not attend Dr Jarman until 18 February 2021.
95. The right knee was not a compensable injury and so a consequential condition of the left knee could not flow from a non-compensable injury to the right knee. The respondent submitted that Dr Jarman’s opinions were bare and unexplained and came a time long after the motor accident. Dr Jarman’s opinions were against the weight of contemporaneous records in which there was a failure to complain of symptoms at the knees.
j.96. The respondent noted that the applicant denied that her knee condition was the consequence of any falls in the history provided to Dr Rimmer.
k.97. The respondent submitted that due to the inconsistencies in the history and the failure of the applicant to refer to her injuries in her initial statement, the Commission would have significant reservations as to the genuineness of the history of an injury or subsequent falls due to weakness of the back or knees.
l.98. The respondent submitted that the opinion of Dr Rimmer was logical and probative. Dr Rimmer accepted the possibility of an injury, but one that was not serious and which had resolved. Despite referring to the radiological investigations, Dr Rimmer’s examination of the left knee was essentially normal.
m.99. The respondent submitted that the opinions of Dr Bodel were given more than three years after the accident. Dr Bodel accepted the version of events provided to him of a knee injury immediately after the accident, which was inconsistent with the clinical notes. Dr Bodel gave his opinions without any reasonable explanation. Dr Rimmer’s opinion was more plausible and in line with the contemporaneous evidence.
n.100. The respondent submitted that the reference to knee pain or soreness in March 2018 had to be considered in the context of extensive right knee problems dating back many years. A history of prior knee surgery had been recorded. It could not be assumed that the reference to the “knee” in March 2018 was a reference to the left knee.
o.101. The respondent submitted that the applicant had failed to discharge her onus of proof on the question of liability. It was also not proven that the recommended treatment was reasonably necessary.
a.102. The respondent referred to Dr Rimmer’s recommendation for cortisone injection and a six to eight week course of physiotherapy. He was of the opinion that a total left knee replacement was unwarranted.
b.103. The respondent submitted that Dr Jarman failed to properly explain why the total knee replacement was reasonably necessary. Dr Bodel simply endorsed the treatment without giving a coherent reason. In contrast, Dr Rimmer provided a more careful, judicious approach to treatment.
c.104. The respondent submitted that an award should be made for the respondent with respect to the claimed knee injury and proposed surgery.
FINDINGS AND REASONS
a.105. Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
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, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
a.106. Section 9A of the 1987 Act provides that no compensation is payable for an injury other than a disease injury unless the employment concerned was a substantial contributing factor to the injury.
b.107. The applicant in these proceedings relies on an “injury” to the left knee in the event on 28 March 2018 and/or a consequential condition at the left knee resulting from the injury to her lumbar spine on 28 March 2018.
c.108. The test for establishing a consequential condition can be distinguished from that required to establish an “injury”. Insofar as a consequential condition is relied upon, the comments of Deputy President Roche in Moon v Conmah at [45]-[46] are relevant:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
a.109. In Bouchmouni v Bakhos Matta t/as Western Red Services, Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
a.110. A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates, where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
a.111. His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
a.112. It is the applicant who bears the onus of establishing on the balance of probabilities that she sustained an injury and/or a consequential condition affecting her left knee. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
a.113. One of the major challenges for the applicant in discharging her onus is the lack of contemporaneous evidence of an injury to the left knee in the event on 28 March 2018.
b.114. There is evidence of the involvement of “a knee” in the incident on 28 March 2018 in the incident/hazard report form completed the next day. The applicant reported that her “back, neck, left arm and knee” were sore and a little stiff afterward. There is, however, uncertainty as to whether the left or right knee was involved. The incident report also does not clearly indicate that both knees were injured in the event as suggested in the later evidence.
c.115. In considering the evidence contained in the incident report form, the respondent drew attention to the fact that the applicant had a pre-existing injury at the right knee in 1997, for which the applicant came to surgery. The evidence indicates, however, that the right knee made a good recovery following that surgery and there is no evidence of any ongoing restrictions or symptoms immediately prior to the event on 28 March 2018.
d.116. Perhaps of more note, the contemporaneous medical evidence following the incident on 28 March 2018 makes reference to radiation of pain, particularly in the right leg up to the knee, suggesting that symptoms were being experienced in the vicinity of the right knee.
e.117. The clinical note recorded by Dr Broeders on 15 April 2018 refers to right lumbar back pain radiating to the right leg up to but not beyond the knee. Dr Broeders noted only that the applicant injured her “back” in the event and performed an examination which revealed no numbness or weakness in the legs, normal and symmetrical strength and reflexes in the lower limbs and generalised reduced sensibility to light touch on the right lower limb. Despite a relatively thorough examination of the lower limbs, there is no suggestion in that clinical note of any knee injury or knee joint pain.
f.118. Consistently with the clinical records, the WorkCover certificates of capacity diagnosed only lumbar back pain without reference to the knees.
g.119. By 16 May 2018, Dr Broeders referred to radiation of pain to both buttocks and both knees but did not suggest that this was the result of any knee injury, as opposed to a symptom of the applicant’s lumbar injury.
h.120. The first clear reference to any injury or event involving the knees that I can discern, appears in a physiotherapist record in February 2021, almost three years after the injurious event, in the context of a recent fall. No reference is made in that record to an injury to the knees on 28 March 2018.
121. The applicant had, by that stage, undergone extensive treatment for her lumbar spine injury and seen a number of specialists as well as medicolegal experts in relation to her compensation claim. The treating evidence pertaining to the applicant’s lumbar spine injury is not all reproduced in the ARD in these proceedings, although it is described in the statement of reasons accompanying the certificate of determination issued by Arbitrator McDonald in the WCC proceedings in 2020. Nothing in that statement of reasons gives an indication of a left knee injury or consequential condition.
j.122. The medicolegal reports relied on by both parties in those proceedings are before me. The report of Dr Cochrane does not describe a knee injury or consequential condition, although it does refer to the applicant experiencing episodic and recurrent falls and slips. The applicant felt like her legs were somewhat unsteady or weak and clumsy.
k.123. Similarly, Dr Bentivoglio took a history of injury to the lumbar spine, with pain radiating into both buttocks and hips, twisting injury to the neck and an injury to the right shoulder. No history was taken of an injury to the knees in the same event.
l.124. The applicant prepared her own statement of evidence for those proceedings on 21 November 2019. Despite describing pain in multiple body parts including her lower back, neck and both shoulders following the event on 28 March 2018, the statement is remarkable for the absence of any mention of left knee injury or subsequent symptoms.
m.125. The complete absence of any record of knee injury or symptoms for a period of almost three years after the injurious event, other than the single reference to a “knee” in the incident report form is significant.
n.126. In Onassis v Vergottis, Lord Pearce commented upon what is often recollected and said by witnesses, after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:
"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
a.127. The first history of an injury to the applicant’s knees in the injurious event that I can discern appears in the first report of Dr Rimmer, dated 19 March 2021. It was around that time that the applicant’s left knee was first being investigated following a fall in which the applicant landed on her knees, documented in the physiotherapist records on 24 February 2021. An MRI of the left knee had been performed on 10 March 2021 and the applicant was first seen by Dr Jarman shortly afterwards.
b.128. A history of injury to both knees on the dashboard in the event on 28 March 2018 was given to Dr Jarman in May 2021.
c.129. A more detailed history of an injury to the left knee in the original incident was set out in the statement of the applicant made on 5 September 2021. In that statement, the applicant, for the first time, described bruising of both knees following the incident.
d.130. The history provided to Dr Bodel on 11 October 2021 gave more prominence to an injury to knees than any other body part. In contrast to all of the more contemporaneous medical and lay evidence, Dr Bodel commented that the lumbar spine injury was not a major feature at the time of the original event. Dr Bodel formed the view that the pathology in the applicant’s knees commenced with the injury on 28 March 2018.
e.131. A review of the evidence before the Commission, therefore, reveals that a clear history of injury to the left knee first appeared around the time the left knee was being radiologically investigated in early 2021. Although a consistent account of the left knee hitting the dashboard in that event was provided subsequently, that history is not corroborated by any of the evidence in the period of almost three years following the event other than the single reference to a “knee” in the incident report form.
f.132. The lack of contemporaneous evidence of a left knee injury is a matter which must be given due weight. In Department of Education and Training v Ireland President, Keating J found:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
a.133. Although there was reference to a “knee” being stiff and sore in the incident notification form in this case, given the prior history of right knee injury and the reference to radicular symptoms up to the right knee in the general practitioner’s notes, I am not satisfied that this is probative contemporaneous evidence of an injury to the left knee.
b.134. Weighing the evidence, I am not satisfied that the applicant has discharged her onus of establishing on the balance of probabilities that the left knee was injured in the event on 28 March 2018.
c.135. The applicant relies, in the alternative, on a consequential condition affecting the left knee.
d.136. A number of falls associated with the applicant’s lumbar injury and right leg weakness are documented in the treating medical evidence.
e.137. Dr Coughlan’s report on 28 June 2020 referred to a recent fall following the fusion surgery performed by him in May 2020. Although Dr Coughlan referred to the applicant’s back pain feeling slightly worse after the fall, there is no reference to knee symptoms following the fall.
f.138. On 4 November 2020, the applicant’s physiotherapist noted that the applicant had three falls following the surgery and daily near misses. On 21 January 2021, two falls whilst out walking due to a weak right leg were noted. It was not recorded whether the falls involved the applicant landing on her knees or gave rise to any increase in knee symptoms.
g.139. On 24 February 2021, however, the physiotherapist noted a fall the previous weekend due to right-sided weakness. The applicant reported landing on her knees in that event. Shortly afterwards, the applicant was referred for an MRI of the left knee, which noted significant pathology of the left knee.
h.140. Although the clinical records of the applicant’s general practitioner from this period are not available, the history provided in connection with the MRI was of a fall the previous year causing injury to the knee.
141. In May 2021, the applicant was referred to Dr Jarman. As noted above, Dr Jarman was given a history of both injury in the motor vehicle accident on 28 March 2018 as well as subsequent falls. This is reflected in the history noted in the report of x-rays of the knees, ordered by Dr Jarman on 13 May 2021.
j.142. In his report of the same date, Dr Jarman considered the applicant was falling as a result of a combination of her back injury and knee issues. The radiological investigations were considered. The applicant was noted to have marked crepitus coming from the left knee and that knee was worse. Although Dr Jarman recommended platelet rich plasma injections to the right knee, he considered the applicant’s left knee was unlikely to improve without a total knee replacement. A request for approval for that surgery was forwarded to the insurer.
k.143. In his medicolegal report for the applicant’s solicitors, Dr Jarman noted a fall whilst recovering from the back surgery in May 2020 as well as multiple other falls. Dr Jarman considered that the fall post lumbar surgery had made a material contribution to the applicant’s knee condition, even though he also attributed the need for surgery to the reported history of an injury to the knee on 28 March 2018.
l.144. Falls and slips associated with the applicant’s lumbar injury were recorded in the other medicolegal evidence. Dr Cochrane in his November 2019 report referred to recurrent falls and slips and the applicant feeling like her legs were unsteady or weak and clumsy.
m.145. Dr Bodel was also given a history of a number of falls, particularly after the spinal surgery in May 2020. Dr Bodel accepted that the applicant had suffered a temporary aggravation of pathology in those subsequent events but did not consider that structural material abnormality had persisted with those falls. Dr Bodel’s opinion as to the contribution of the falls to the applicant’s condition must, however, be viewed in the context of the history given to him, of a more significant injury to the left knee in the event on 28 March 2018. As indicated above, I am not satisfied that that history was supported by the more contemporaneous evidence.
n.146. Dr Rimmer was also provided with a history of falls, including a fall at home, two days after the lumbar spine fusion. Significantly, however, Dr Rimmer noted that the applicant was adamant that she injured her left knee at the time of the initial injury and did not have a consequential condition. For this reason, Dr Rimmer did not direct his attention further to the possibility of a consequential condition at the left knee due to the falls.
o.147. The history provided to Dr Rimmer, suggesting that the applicant’s knee condition was not connected to the falls, is a circumstance to which I have afforded weight. It is, however, a history that stands in contrast to the treating medical evidence.
p.148. I have also noted that Dr Rimmer observed in his final report that the general practitioner’s clinical notes referred to the applicant being diagnosed with Meniere’s disease, which in general terms, made an individual more susceptible to recurrent falls. There is, however, no doubt that following the lumbar injury, and particularly following the lumbar surgery, numerous practitioners have documented significantly more frequent and recurring falls which they have connected to the lumbar injury.
q.149. Weighing the evidence, I am satisfied that the lumbar injury and right leg weakness which were documented in the first clinical record following the injury on 28 March 2018 and throughout the subsequent medical evidence, have caused the applicant to have a number of falls in which she has landed on her knees, or otherwise experienced an increase of symptoms particularly at the left knee.
r.150. Although the pathology shown in the left knee on radiological investigation suggests the presence of degenerative changes, I am satisfied, particularly on the evidence from Dr Jarman, that the falls have made a material contribution to the applicant’s current left knee condition. In particular, the fall in early 2021 involving the knees appears to have triggered a series of investigations, the referral to Dr Jarman and ultimately the recommendation for surgery.
s.151. The falls need not be the sole cause of the applicant’s knee condition and need for surgery. In Murphy v Allity Management Services Pty Ltd Roche DP stated:
“...That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
a.152. I am satisfied that symptoms and restrictions in the applicant’s left knee have resulted from the lumbar injury on 28 March 2018, due the subsequent falls caused by that injury. I am satisfied that the applicant has sustained a consequential condition at the left knee as a result of the injury on 28 March 2018. I am further satisfied that the injury has materially contributed to the current proposal for a total knee replacement at the left knee.
b.153. It remains to be determined whether the total knee replacement surgery is “reasonably necessary” as a result of the injury.
c.154. Section 60 of the 1987 Act relevantly provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
a.155. What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW) where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
a.156. Further, his Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
a.157. His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
a.158. In Diab v NRMA Ltd, to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
a.159. Deputy President Roche commented further:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
a.160. The respondent relies on the medicolegal opinion of Dr Rimmer in submitting that the surgery proposed by Dr Jarman is not reasonably necessary medical treatment.
b.161. It is noted that at the time of his first report, and examination of the applicant, there was no proposal for a total knee replacement as the applicant had not yet been seen by Dr Jarman. Dr Rimmer referred to the MRI report and recorded a clinical examination of the left knee. Other than a report of intermittent pain and some reduced range of motion with discomfort, that examination appeared largely unremarkable. Dr Rimmer accepted that the applicant had a knee injury, consistently with the history provided to him, but formed the view that it had resolved.
c.162. By the time of his second report, the surgery had been proposed by Dr Jarman. On this occasion, Dr Rimmer referred to his essentially normal clinical examination but also referred to an “essentially normal investigation”. To the extent that Dr Rimmer was referring to the radiological investigations in evidence in these proceedings, his characterisation of those investigations as “normal” is clearly inaccurate. Those reports show large areas of full thickness chondral loss and areas of high-grade chondral loss, meniscal tears and fraying and patellofemoral abutment with underlying marrow oedema.
d.163. Dr Rimmer’s misrepresentation of the radiological evidence has adversely affected the reliability of his opinion that the surgery proposed by Dr Jarman was not warranted. This error in Dr Rimmer’s report also affects the reliability of his suggestion that alternative treatments were available to the applicant in the form of a six to eight week course of physiotherapy in conjunction with ultrasound guided cortisone injection.
e.164. Dr Jarman has in his reports justified the surgery based both on his clinical examination and the radiological evidence. Dr Jarman noted that the applicant had been undergoing physiotherapy with Mr Stahlhut without any improvement. The applicant has also noted that she experienced serious adverse and possibly allergic reactions to cortisone injection to her lumbar spine previously.
f.165. Dr Jarman’s reports demonstrate a considered approach to the most appropriate treatment for the applicant’s various conditions. Different and more conservative treatment was suggested for the applicant’s right knee. Dr Jarman has justified the surgical procedure at the left knee by noting that without the surgery the applicant’s condition was unlikely to improve. The reasonable necessity for the surgery in treating the applicant’s knee condition has been endorsed by Dr Bodel.
g.166. I am satisfied that the surgery proposed is appropriate and likely to be effective and has been accepted by the applicant’s expert as such. I am not satisfied that there are other alternative treatments available which are likely to be potentially effective in the applicant’s circumstances. Whilst the costs of the procedure are significant, I am satisfied that the procedure is reasonably necessary as a result of the injury on 28 March 2018, for all the reasons given above.
h.167. There will be an order for the respondent to pay the costs of and incidental to the total left knee replacement surgery proposed by Dr Jarman on 13 May 2021, in accordance with s 60 of the 1987 Act.
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