Mackenzie v Combined District Radio Cabs Pty Ltd
[2023] NSWPIC 283
•16 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Mackenzie v Combined District Radio Cabs Pty Ltd [2023] NSWPIC 283 |
| APPLICANT: | Tracey Mackenzie |
| RESPONDENT: | Combined District Radio Cabs Pty Limited |
| Member: | Philip Young |
| DATE OF DECISION: | 16 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for total right knee replacement surgery; applicant had prior history of niggling right knee pain due to osteoarthritis then specific incident in the course of her employment; Held – applicant a reliable historian and preponderance of medical opinion supports relationship between current need for surgery and incident at work; section 60(5) declaration accordingly in favour of the applicant. |
| determinations made: | The Commission having considered this matter determines as follows: 1. The surgery proposed by Dr Bateman in his report of 5 September 2022, namely right total knee replacement surgery, is reasonably necessary medical treatment resulting from injury to the applicant in the course of her employment and a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) is made to that effect. 2. The respondent is directed to pay the reasonable costs of and incidental to the proposed surgery. |
STATEMENT OF REASONS
BACKGROUND
Tracey Mackenzie (the applicant) is a 62-year-old lady who was employed by Combined District Radio Cabs Pty Limited (the respondent) as a taxi driver. She alleges both a frank personal injury and alternatively an aggravation, acceleration, exacerbation or deterioration of a disease.
The respondent accepts that the applicant suffered injury to her lower back as well as psychological injury. The applicant’s current claim is that she now requires right total knee replacement surgery and it is that surgery which is denied by the respondent.
On 19 February 2021 the applicant was lifting a disabled passenger down a set of steps when in the course of this activity she alleges she suffered her various injuries. Yet the applicant concedes that she had experienced a pre-existing condition to her right knee. This work incident is alleged to be the main contributing factor to aggravation of her right knee such that she now requires right total knee replacement surgery.
ISSUES
As the submissions developed, the principle issue in dispute became whether the applicant’s need for right total knee replacement surgery was aggravated, accelerated, exacerbated or deteriorated by the incident in accordance with the provision of s 4(b)(ii) of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
This matter came for conciliation and arbitration hearing face-to-face on 11 May 2023. Mr Carney of counsel instructed by Mr Narsimullo, solicitor, appeared for and with the applicant. Mr Grant of counsel instructed by Ms Pearson, solicitor, appeared for the respondent. An insurer representative was present.
At the outset of the proceedings Mr Grant made an application to put injury in issue. Having heard submissions from both Mr Grant and Mr Carney, I provided reasons as to why this application should be refused. Those reasons have been sound recorded and are available to the parties.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute lodged 10 March 2023 and attachments (Application);
(b) Reply lodged 4 April 2023 and attachments (Reply), and
(c) Application to Admit Late Documents and attachments (AALD) lodged by the respondent on 8 May 2023.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The applicant in her statement of 6 December 2022[1] indicates that she was originally employed to work four times eight hour shifts each week and this was subsequently reduced to four times seven hour shifts. She concedes that prior to 19 February 2021 she had some pain in her right knee but that this was a niggling pain which she thought was arthritis.
[1] Application at page 1.
The applicant’s statement addresses this pain before her injury and her general practitioner did order an X-ray of her right knee in February 2021. The applicant says that after 19 February 2021 her right knee worsened considerably and the applicant points to reports of Dr Kale[2] which refers to an acute exacerbation which loading a patient, Dr Bateman[3] which refers to an exacerbation, Dr Giblin[4] which says that the accident “caused a significant aggravation and deterioration of that condition”. There are therefore three specialist who support the fact that the applicant suffered an exacerbation of her right knee condition.
[2] Application at page 56.
[3] Application at page 38.
[4] Application at page 29.
The insurer retained Dr Powell for independent medical examination and his report is dated 16 December 2021.[5] Dr Powell was of the view when examining the applicant[6] that “there was no suggestion of overreaction or exaggeration”. Dr Powell also accepted the position that the work-related incident “represented aggravation of well established pre-existing medial compartment degenerative change”. The main difference between Dr Powell’s decision and those of the other doctors is that Dr Powell[7] whilst acknowledging ongoing symptoms thought the symptoms to be “more likely to be related to the long-standing degenerative disease process involving the right knee”.
[5] Reply at page 1.
[6] Reply at page 5.
[7] Reply at page 7.
Dr Powell provided a supplementary report dated 26 April 2023.[8] It is it he addresses Dr Gibling’s conclusion concerning ongoing aggravation of pre-existing degenerative pathology within the applicant’s right knee. Dr Powell expressed the opinion that any aggravation from the incident on 19 March 2021 “was temporary and would have resolved by now”.[9] He nonetheless concedes as follows:[10]
“It is always difficult to determine when aggravation of a pre-existing degenerative disease process resulting from a specific incident settles, and when ongoing symptoms or functional limitations relate to the pre-existing process”.
[8][8] AALD at page 2.
[9][9] AALD at page 3.
[10] AALD at page 4.
Dr Powell then sets out a number of criteria to assist in this decision-making process and concludes[11] “… under Work Cover Guidelines, not only does aggravation have to be established, but employment also has to be established as the main contributing factor and for the reasons I have outlined above, I do not believe that is the case in this example”.
[11] AALD at page 5.
I am unable to identify the specific “Work Cover Guidelines” reference to the matter relied upon by Dr Powell but it does seem clear that if he is referring to s 4(b)(ii) of the 1987 Act, he has applied the wrong test at arriving at his opinion. In other words, employment need only be the main contributing factor the initial aggravation (19 February 2021) not the main contributing factor to any ongoing aggravation.
The preponderance of medical opinion, including that of treating doctor Dr Bateman confirm that the incident caused an exacerbation of right knee pain such that the applicant “has had issues with the knee ever since”. Dr Powell saw the applicant only on one occasion. Dr Gibling supports the relationship between the need for surgery and the aggravation or exacerbation to the applicant’s right knee resulting from the incident of 19 February 2021. There are no issues about the applicant exaggerating her condition and the progression of it and because of these two factors and in the absence of any serious challenge to the need for surgery, I am of the view that the proposed right knee replacement surgery is reasonably necessary medical treatment resulting from the applicant’s injury within the meaning of s 60 of the 1987 Act.
FINDINGS
The surgery proposed by Dr Bateman in his report of 5 September 2022, namely right total knee replacement surgery, is reasonably necessary medical treatment resulting from injury to the applicant in the course of her employment and a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) is made to that effect.
The respondent is directed to pay the reasonable costs of and incidental to the proposed surgery.
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