Manera v Diversey Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Manera v Diversey Australia Pty Ltd [2021] NSWPIC 223
APPLICANT:	Anthony Manera
RESPONDENT:	Diversey Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	2 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation pursuant to section 60 for disputed left knee injury including proposed total knee replacement; prior injury in 2002 requiring arthroscopy; multiple surgeries to right knee; whether employment with the respondent the main contributing factor to an aggravation of pre-existing osteoarthritis; Federal Broom Co Pty Ltd v Semlitch and AV v AW applied; Held- the applicant sustained an injury pursuant to section 4(b)(ii); the present need for surgery resulted from such injury; award for the applicant in respect of the proposed treatment and incurred expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury to his left knee in the nature of an aggravation of a disease to which employment with the respondent was the main contributing factor. 2. The left total knee replacement proposed by Dr Yasser Khatib is reasonably necessary as a result of the injury.
ORDERS MADE:	1. The respondent to pay the costs of and incidental to the surgery proposed by Dr Khatib pursuant to s 60 of the Workers Compensation Act 1987. 2. The respondent to pay the applicant’s reasonably necessary incurred expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Anthony Manera (the applicant) was employed as a forklift driver by Diversey Australia Pty Ltd (the respondent). The applicant claims that as a result of the nature and conditions of his employment with the respondent he sustained an injury to his left knee. The applicant further claims that as a result of that injury it is reasonably necessary that he undergo a left total knee replacement as proposed by Dr Yasser Khatib.
The respondent’s insurer disputed liability for the alleged injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 18 August 2020. That decision was maintained following internal review on 16 December 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 25 March 2021. The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of incurred treatment expenses and the proposed total knee replacement surgery.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 25 May 2021. The applicant was represented by Mr John De Greenlaw, of counsel, instructed by Ms Natalie Pawlikowski. The respondent was represented by Mr Graham Barter instructed by Mr Malcolm Griffin. Representatives from the insurer were also present.
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

The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury to his left knee as claimed, and
(b) if so, whether the medical treatment claimed is reasonably necessary as a result of such injury.

EVIDENCE

Documentary evidence

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

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) document attached to an Application to Admit Late Documents lodged by the respondent on 29 April 2021, and

(d) documents attached to an Application to Admit Late Documents lodged by the applicant on 21 May 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 11 August 2020, 10 December 2020 and 21 May 2021.
In his first statement, the applicant said that he was employed by the respondent as a forklift driver from 2 January 2018 onwards. The applicant previously performed the same duties for the respondent as a full-time casual through a labour hire firm from 4 May 2014.
The applicant said he made a previous workers compensation claim on 17 October 2002 when he had a slip on a wet floor and injured his left knee. The applicant underwent arthroscopic surgery to the left knee to repair his meniscus and had time off before returning to work. The applicant returned to pre-injury duties in around late 2003. The applicant was offered a 1% impairment payout.
The applicant said he had not had any major issues with his left knee other than some stiffness from time to time until the current injury.
The applicant said he had made other workers compensation claims in relation to an injury to his right knee. The applicant underwent three surgeries to his right knee. Two surgeries were arthroscopic meniscus repairs and the third was a high tibial osteotomy. The third surgery was performed in 2001. The applicant returned to full pre-injury duties following the injury to his right knee.
The applicant described his duties for the respondent as follows:
“As a Forklift operator I receive an order. I then take that order to the locations within the warehouse that the products are stored. I am then required dismount to and move the forklift, put the items onto a pallet and then get back onto the forklift take that completed to the next item and repeat that process until that order is full. I then grab another order and order to an area to be checked and drop the pallet off. I then complete the process again.
I would estimate that in any given day that I would have to mount and dismount the forklift between 100 and 200 times per day.”
The applicant stated that when he first commenced working with the respondent in 2014 a Toyota BT forklift was used. This forklift had a rail which could be used when accessing the forklift. The floor of the operating area was about 48 cm from the ground but there was an additional step into the chassis about 24 cm from the ground, which made getting in and out of the forklift quite easy.
The applicant said that the Toyota BT forklifts were used up until 2016. They were then replaced with Linde brand forklifts. The Linde forklift was about the same size and dimension as the Toyota BT but did not have a step at the midpoint between the ground and the floor of the operating area. Although the Linde forklift also had rails to grab onto, the first step into the cabin area was 48 cm from the ground.
To enter the Linde forklift as a driver, the applicant would grab the rail with his left hand, then lift his left leg up onto the floor of the forklift the full 48 cm and use the left leg to lift himself up into the cabin of the forklift. This manoeuvre could not be done using the right leg as it would then have to be crossed over the body in order to get into the seat.
The applicant continued to perform his normal duties using the new forklifts but found it more difficult to get in and out of the forklift. Around mid-January 2020, the applicant started to experience stiffness in his left knee with some mild pain. The applicant was taking over-the-counter pain medication to help ease his pain and kept working.
On 15 February 2020, the applicant’s pain and stiffness was continuing. The applicant consulted his general practitioner, Dr Brian Chau at Mount Druitt Medical Centre. The applicant was referred to orthopaedic surgeon, Dr Yasser Khatib, whom he saw on 2 March 2020. Dr Khatib reviewed an x-ray of the applicant’s left knee and recommended a total left knee replacement. The applicant was also referred to a foot and ankle specialist, Dr Jason Chow.
Throughout this period, the applicant maintained his normal duties at work. The applicant did not have any time off and attended appointments outside of work hours.

On 4 May 2020, the applicant woke up with severe pain in his left knee whilst at home. The applicant was not able to walk. The applicant went to see Dr Liang at Astley Medical Centre and was given a prescription for tramadol. The applicant returned to work the next day.

The applicant went to see Dr Khatib on 13 May 2020 and was placed on an elective surgery waiting list for a knee replacement.

The following day, the applicant reported to his manager, Mr Darren Reemeyer, that he had been placed on an elective surgery waiting list for a knee replacement. The applicant did not mention anything about the surgery being work-related. The applicant continued working his normal full hours and duties but was moving a little slower.

On 27 May 2020, the applicant sent an email to GIO providing details of his October 2002 claim. The applicant believed his previous knee injury was a contributing factor to his current problems.

On 4 June 2020, GIO requested a certificate of capacity and evidence that the previous injury was contributing to the applicant’s current condition. On 10 June 2020, the applicant was provided with a certificate of capacity by Dr Liang which gave the date of injury as 17 October 2002. On 22 June 2020, the applicant’s claim was declined.

The applicant then consulted his current solicitor and mentioned that the change of forklift to the Linde forklift without the additional step may have contributed to his left knee condition.

On 7 July 2020, the applicant contacted Mr Reemeyer to notify him that climbing in and out of the Linde forklift had contributed to the injury to the applicant’s knee. The applicant returned to work on 13 July 2020.
In his first supplementary statement, the applicant described returning to work in pre-injury duties in around March 2003 following the slip in 2002. The applicant’s left knee fully recovered and the applicant was able to perform his job once again. Although recent radiological scans suggested that the applicant continued to have osteoarthritis in the knee, following the left knee surgery the knee was completely asymptomatic and the applicant had no physical restrictions. The applicant considered himself fit and highly capable of handling the physical demands of his job.
The applicant did not experience any pain or restrictions in his left knee at the time he commenced employment with the respondent. The applicant engaged in his activities of daily living without compromise and seldom took time off work.

The applicant stated:
“Throughout the course of my employment, I was required to repetitively climb up onto my forklift. As there were a large gap between the steps, I had to awkwardly raise my left foot 48 cm to the forklift, and using my left leg and arms to lift myself into the forklift and as a result of constantly doing this movement, I suffered an aggravation to my pre-existing left knee injury.”

The applicant said he had continued to seek medical treatment and have investigations of his left knee throughout 2020. The applicant’s left knee pain got progressively worse. The applicant’s left knee pain had impacted upon his ability to function and the knee was incredibly fatigued by the end of the work shift. The applicant continued to work throughout 2020, managing his left knee pain by taking strong medication. The applicant was allowed regular breaks and performed tasks which reduced his need to get on and off a forklift constantly. The applicant had taken multiple sick days to manage his pain.
The applicant expressed the belief that he required the surgery proposed by Dr Khatib. The applicant was no longer able to be as active and involved in his children’s lives, was constantly in pain and had become highly reliant on medication to get through each day. The applicant wished to return to his pre-injury duties free of pain.
In his final statement, the applicant indicated that he had disclosed the arthritis in his left knee in a pre placement medical assessment done prior to the commencement of permanent employment with the respondent. The applicant acknowledged that he did not specifically state that the knee was injured as a result of the workers compensation claim in 2002. The applicant said he had worked very hard as a casual employee and was hopeful of obtaining full-time work. The applicant was worried that if he mentioned workers compensation he would not be offered a full-time position. The previous workers compensation injury occurred almost 20 years ago. The doctor made the applicant do an exercise with both of his knees which the applicant was able to perform.
The applicant confirmed that he had told his manager, Mr Reemeyer that there was no specific incident or accident to report as an injury. The applicant made this statement prior to receiving legal advice. The applicant said he was not aware that he could make a workers compensation claim in relation to a pre-existing injury that had been aggravated by his work activities.
The applicant confirmed that he did walk with a limp when he first was employed with the respondent, however, it was his right knee that caused him to limp. The applicant only started walking with a left sided limp when required to use the Linde forklift in 2016. The applicant said that at the time of his conversation with Mr Reemeyer on 7 May 2020, the applicant had not realised his left knee arthritis was related to work. The applicant later consulted his solicitor and mentioned the 48 cm step onto the Linde forklift. The applicant then realised that his knee had deteriorated since using the Linde forklift.
The applicant said he used a step to get into and out of the Linde forklifts which he bought himself from Bunnings. The applicant had taken very limited sick leave as a result of the knee injury despite the knee being extremely painful. The applicant did not want to let his employer down by taking time off.

Mr Reemeyer

The respondent relies on a written statement prepared by Mr Darren Reemeyer, dated 13 August 2020. Mr Reemeyer said he was employed as a logistics manager by the respondent and confirmed that the applicant was employed as a store person. The applicant’s duties involved pick, packing orders, general housekeeping and some container loading and unloading. The applicant mainly did pick and pack duties. This involved the use of high reach and gas forklifts.
Mr Reemeyer said the applicant had always walked with a limp since he commenced employment. When asked if he was okay the applicant explained that he had previously injured his left knee with a previous employer many years ago and there was not much he could do about it. When the applicant was made a permanent employee, he was told to undergo a medical. The report came back that the applicant was suitable for permanent employment.

Mr Reemeyer said it was correct that the respondent previously used Toyota BT branded forklifts. These were changed around August/September 2016 to Linde brand forklifts. With regard to the difference between the two forklifts, Mr Reemeyer said:
“The two forklifts are basically identical in sizes and the only difference there was between the two forklifts was that the Toyota brand at the mounting point for the driver did have a step at about 250mm - 300mm from the ground and the floor of the cabin sat about 500mm from the ground. The Linde forklift just has the one step at 500mm to the floor of the cabin.
The claimant does have a 240mm step ladder that he uses to mount the Linde Forklift. This is attached to the forklift and he carries this with him to get on and off the forklift. He has been provided with this step ladder since he first informed of the issues he was experiencing in May.”
Mr Reemeyer said:
“On the 7 May 2020, the claimant had been taking random days off and had a certificate with a medical condition. He is an honest person and tells it like it is. I could see that he appeared to be in more pain with his knee. I asked him about his knee, and he told me that he needed a knee replacement and that he was on a waiting list. He also told me that he had no private health insurance. He further told me that it was not work related and it was from a previous injury working with the Department of Immigration at a Detention Centre.”
On 7 July 2020, the applicant indicated that he was having further difficulties with his knee and advised that he was looking to make a claim against the respondent for aggravating his previous injury. In the same conversation the applicant was asked how he had passed the pre-employment medical. The applicant said he did not declare the earlier injury and told the doctor that he had some arthritis.
The applicant returned to work on 13 July 2020 and handed in a clearance certificate saying he was fit for duties.
Mr Reemeyer said that he had asked the head of maintenance from Linde forklifts to come and inspect the forklifts. An email was sent later confirming that the forklifts met current Australian standards.
The applicant was continuing to work full hours but was being given orders that involved less getting on and off the forklift and prolonged standing.

Pre Placement Medical Assessment

A medical assessment prepared by Sonic Health Plus dated 30 November 2017 is in evidence. The applicant declared that he had previously been in hospital and had previously undergone x-ray, CT, ultrasound or MRI scan. Asked to provide further detail, the applicant stated:
“Knee operation 2001, Nurofen plus for knee pain – occasionally”
Handwritten notes on the report indicate that this was in reference to the right knee and playing rugby league and tearing cartilage. The applicant had undergone no more treatment but did have pain when squatting repetitively.
The applicant also reported having arthritis in the left knee and difficulty crouching/bending/kneeling or running 100 m.

Treating medical evidence

Clinical records from the applicant’s general practitioners at Astley Medical Centre and Mount Druitt Village Medical Centre are in evidence. Where relevant, those records are referred to elsewhere
Orthopaedic surgeon, Dr Yasser Khatib, prepared a report on 2 March 2020 after reviewing the applicant for persistent left knee osteoarthritis. Dr Khatib took a history as follows:
“Anthony is a 49-year-old make who works as a store man for a cleaning supplies company in Smithfield. He has known about osteoarthritis in his left knee for many years. In 2002, he had a knee arthroscopy under the care of Professor Choong. At the time, he had some relief of his symptoms but over the last 6 months he has had significant deterioration of symptoms with constant pain. His pain is worse with activities that involve getting up into the forklift and getting off the forklift. He has difficulties walking for an extended period of time. He takes Panadol Osteo and Celebrex on most days of the week. He has pain at night. Pain is worse with going up and down steps.”
Dr Khatib diagnosed advanced knee osteoarthritis with bone on bone articulation of the medial femoral condyle and medial tibial plateau. Dr Khatib indicated that a total knee replacement surgery would be appropriate although he had reservations about offering the surgery at this stage as the applicant had a significant pes planus deformity. Dr Khatib referred the applicant to his colleague, Dr Jason Chow for review and management. If Dr Chow decided not to operate then Dr Khatib said that he would be willing to offer the knee replacement surgery.
Dr Chow wrote to Dr Khatib on 11 May 2020 indicating that recently the applicant’s knee had become much more symptomatic. The applicant was having difficulties at work and requiring increasing amounts of analgesia. The applicant had no symptomatic complaints in regard to his foot. Dr Chow said the applicant would benefit from a left total knee replacement prior to the correction of the planovalgus of his left foot.

On 13 May 2020, Dr Khatib prepared a report indicating that the applicant had agreed to proceed with a left total knee replacement. The surgery would improve the applicant’s pain profile. The applicant was referred to the Nepean Hospital elective surgery waiting list.
The applicant’s general practitioner, Dr Wenxi Liang, responded to a series of questions from the insurer on 13 July 2020. Dr Liang diagnosed severe left knee osteoarthritis. The mechanism of injury was described as “wear + tear from mobilisation – new forklifts”. Dr Liang indicated that work was a substantial contributing factor to the pathology.
Dr Liang prepared a further response to questions from the insurer on 29 July 2020. In this report, Dr Liang was asked whether employment with the respondent was the main versus a substantial contributing factor to the applicant’s condition. Dr Liang responded:
“Patient reports it is a main contributing factor via fork lifts. Fork lift has been investigated – compliant with Australian standards. However it is not practical for work that is done. They are quite difficult to access – 48 cm from the ground. His daily work schedule entails him going up and down 150 – 200 times a day. Movement requires needing to bend the knee to pull yourself up, causing repetitive wear and tear. Patient has worked at the current company for six years where this repetitive insult can attribute to his current L knee condition.”
Dr Liang said that there was no other acute incident that provoked the pain. Day-to-day life may have contributed but not to the degree seen clinically. Dr Liang gave the opinion that work would have definitely made a more significant contribution.
Dr Liang prepared a report for the applicant’s solicitor dated 29 January 2021. Dr Liang first reviewed the applicant for his left knee osteoarthritis on 26 April 2020. At that time, the applicant had already consulted orthopaedic surgeon Dr Khatib. Dr Liang noted the knee injury on 17 October 2002 after slipping on some tiles work. The applicant underwent an arthroscopy and had no major concerns until an exacerbation of pain in May 2020. Dr Liang noted:
“Mr Manera suspects that his work with forklifts has been a large contributor to the degradation of his left knee. He reports that the forklift’s step height from the ground, which he says his 48 cm, and the number of times he comes on and off the forklift each day, roughly reported as 150-200, have led to the degenerative changes to his left knee.”
Dr Liang gave the opinion:
“Physical activity, such as that which Mr Manera says is involved in his work, is known to contribute to this condition. Ultimately, however, given that Mr Manera’s past injury could also be contributing to his condition, only an orthopaedic surgeon would be qualified to assess the degree of contribution. The pain and disability that Mr Manera reports is reflected in the moderate-severe analgesic regimen needed and the reported restrictions placed upon his workplace duties.”
With regard to the treatment proposed by Dr Khatib, Dr Liang gave the opinion:
“With surgical fixation and rehabilitation, the patient’s function and ability to engage in activities of daily living should improve dramatically. In my opinion, surgery will be the most cost effective form of treatment; alternate treatments in the form of conservative therapy, such as physiotherapy, may provide some help, but they will not halt the degradation of the knee joint over time.”

Dr Gothelf

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr Todd Gothelf, dated 28 October 2020.
Dr Gothelf took a history of the previous left knee injury on 17 October 2002. Dr Gothelf noted the applicant’s employment duties with the respondent and took a history that the company acquired Linde forklifts in 2016 which had a higher step. The frequent stepping resulted in the experience of pain.

Dr Gothelf noted the previous right knee injuries and the three surgeries to the right knee. The applicant did well after the high tibial osteotomy and had no further issues with his right knee. Dr Gothelf also noted the injury in 2002 to the left knee and the subsequent left knee arthroscopy for a meniscectomy.

Dr Gothelf diagnosed left knee arthritis. With regard to causation, Dr Gothelf stated:
“The cause of Mr Manera’s left knee arthritis is multifactorial. The previous injury in 2002 and subsequent knee arthroscopy and meniscectomy are likely contributors to the development of knee arthritis. Work activities that are physical with excessive knee bending and heavy physical demand has been shown to contribute to the development of knee arthritis.
Mr Manera has been working full time as a forklift driver and storeman since 2014 and his physical work has likely contributed to the development of left knee arthritis. The history of symptoms also supports that the physical work has contributed to knee arthritis, as Mr Manera reported no symptoms after the left knee arthroscopy and then he developed symptoms only recently in early 2020 while working for Diversey Pty Ltd.
Based on the above information, and on the balance of probabilities, Mr Manera likely had a pre-existing left knee condition but his work with Diversey Pty Ltd was the main substantial contributing factor to the aggravation and acceleration of his condition, resulting in the need for a left knee replacement at Mr Manera’s young age of 51.”
With regard to the surgery proposed by Dr Khatib, Dr Gothelf stated:
“I agree that Mr Manera is a candidate for left total knee replacement and it is
reasonably necessary to proceed with this treatment as he has end stage left knee
arthritis.”

Dr Powell

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Richard Powell, dated 17 August 2020 and 28 April 2021.
In his first report, Dr Powell noted a long history of problems with the left knee starting in 2002 due to a twisting injury of the left knee with a previous employer. Following a left knee arthroscopy an excellent result was obtained and the applicant was able to resume his full pre-injury duties. The applicant’s symptoms resolved completely.

The applicant experienced a gradual accumulation of stiffness over the past few years, typically towards the end of the day. The applicant was able to self manage this with anti-inflammatories. When symptoms worsened, the applicant consulted his local doctor and was referred to Dr Khatib who recommended a total knee replacement. The applicant was also referred to a foot and ankle surgeon prior to that in relation to some foot alignment issues.

Following a significant flare in symptoms in May 2020 without precipitating incident, the applicant returned to Dr Khatib and was placed on the public hospital waiting list for a total knee replacement.
Dr Powell took a history of the applicant’s employment duties with the respondent and the change in forklifts that was consistent with the applicant’s evidence.

Dr Powell also noted a long history of problems at the right knee including two arthroscopies and a high tibial osteotomy performed in 2001. The applicant had an excellent result from the osteotomy.
Dr Powell’s examination was consistent with a diagnosis of advanced left knee osteoarthritis.
With regard to causation, Dr Powell stated:
“The osteoarthritis involving the left knee represents a primary condition. It is likely to be multifactorial in origin taking into account a constitutional component as well as a possible post-traumatic component related to the previous injury and surgery in 2002. No specific details are available in relation to the 2002 incident. He is suffering from a degenerative disease process. There is no evidence that his employment represents the main contributing factor in either the development or permanent aggravation of that condition.”

Dr Powell described the proposed total knee replacement as “entirely appropriate”, however:
“This was required to address the pre-existing degenerative disease process and is not required on the basis of any injuries sustained in the course of his employment.”
In his supplementary report, Dr Powell maintained his earlier opinion, stating:
“Though I acknowledge there was a physical component to the work he was performing as a forklift driver with Diversey Australia Pty Ltd I would not consider the nature and conditions of his employment sufficient to represent the main contributing factor in either the development or permanent aggravation of the degenerative disease process involving the left knee. The osteoarthritis involving the left knee is likely to be multifactorial. He underwent a partial medial meniscectomy in 2002. This irreversibly alters the joint reaction forces and affects the biomechanics of the joint which over time can increase the risk of the subsequent development of osteoarthritis.”
Dr Powell noted that the applicant was also suffering from advanced osteoarthritis involving the contralateral knee for which he had undergone a series of surgical procedures including several arthroscopies and a high tibial osteotomy. Dr Powell stated:
“The presence of advanced bilateral knee osteoarthritis present over a long period of time in a relatively young male raises the possibility of there being a primary constitutional component to the degenerative disease process. This acts in combination with the altered biomechanics resulting from the previous partial medial meniscectomy and places Mr Manera at significant risk of the subsequent development of osteoarthritis. This has indeed occurred and has slightly worsened over a period of several years which is in line with the natural history of the underlying degenerative disease process.”
Considering these “major contributing factors”, Dr Powell said he did not believe that the nature and conditions of the applicant’s employment was the main contributing factor in either the development or permanent aggravation of the underlying degenerative disease process. Dr Powell said it was likely that the applicant would have experienced symptoms at about the same time irrespective of his employment, as had occurred at the contralateral knee.
Asked to consider the opinion given by Dr Gothelf, Dr Powell responded:
“I respectfully disagree with the opinion provided by Dr Gothelf. Though his employment may be a contributing factor I do not believe there is sufficient evidence to conclude that it represents the main contributing factor in the aggravation of the degenerative disease process involving the left knee. His ongoing symptoms and functional limitations are consistent with the natural history of that process and the proposed total knee replacement is required on the basis of the pre-existing pathology and not the effects of any injury sustained in the course of his employment.”

Applicant’s submissions

Mr De Greenlaw noted the previous injury and surgeries to the right knee. In 2002 the applicant sustained an injury to his left knee which ultimately required arthroscopy also. The applicant made a good recovery after the knee surgeries and the only evidence in the general practitioner’s notes of problems with left knee after the 2002 arthroscopy were a clinical note in December 2002 referring to the surgery having been performed; a 2004 reference to the applicant returning to pre-injury duties and a note dated 12 August 2008 when the applicant’s left knee was mildly swollen after tripping.
The next entry in the clinical records referring to left knee pain was over 10 years later in 2018.
Mr De Greenlaw noted that when the applicant commenced in employment with the respondent he was driving Toyota forklifts. The applicant was able to manage his duties with no time off work. The applicant was required to get on and off the forklift 100 to 200 times per day. The applicant’s evidence was that he used his left leg to get into the forklift.
The applicant’s manager Mr Reemeyer confirmed that Linde forklifts with a much higher first step, 48 cm from the ground, were introduced. The applicant’s evidence was that he found it much more difficult to get on and off the Linde forklifts. The Toyota forklifts had a second step compared to the single step into the Linde forklift. Mr De Greenlaw submitted that Mr Reemeyer essentially agreed with the applicant’s estimate of the distance between the ground and the first step of Linde forklift.
Mr De Greenlaw noted that the applicant underwent medical examination with the respondent when he commenced full time employment. The applicant declared the right knee surgery and stated that he no longer required physiotherapy or other treatment. The applicant was able to squat and the knee had not been an issue in his employment duties to date. The right knee examination was satisfactory.
The clinical records from 2018 onwards showed complaints of left knee pain. The left knee became more continuously painful and eventually so unbearable that the applicant was referred to specialists and advised to undergo a total knee replacement.
Following the claim for approval of the surgery, the applicant was examined by Dr Powell. Dr Powell found a degenerative disease process in the left knee and said there was no evidence that employment with the respondent was the main contributing factor to the development or permanent aggravation of a condition. The applicant’s osteoarthritis was said to be multifactorial and the previous meniscectomy in 2002 was said to be relevant. The presence of bilateral knee osteoarthritis also raised the possibility of a primary constitutional component.
Mr De Greenlaw submitted that Dr Powell had applied an incorrect test. The applicant sought to satisfy the definition of injury in s 4(b)(ii) of the 1987 Act. Employment was only required to be the main contributing factor to an aggravation of the degenerative disease in the applicant’s left knee.

The applicant’s left knee symptoms had been quiescent for 14 years. The applicant was reasonably pain-free. After the new forklifts were introduced, the applicant’s knee was constantly painful. Mr De Greenlaw submitted that it was illogical that there was no aggravation or causal relationship to work. There was no history of the applicant undertaking any activity other than work that could have caused the aggravation of the osteoarthritis. Mr De Greenlaw described Dr Powell’s opinion as a bare ipse dixit.

Mr De Greenlaw noted that based on the history provided to him Dr Gothelf found employment was the main contributing factor to the aggravation of the left knee condition and the requirement for surgery.

Noting the 2002 knee injury, Mr Greenlaw submitted that the applicant had few symptoms following the surgery despite engaging in physically demanding work. Pursuant to s 16 of the 1987 Act, compensation was payable by the last employer that employed the applicant in work that was a substantial contributing factor to the injury.
The applicant was able to work satisfactorily on the Toyota forklifts but the Linde forklifts with the higher step led to constant severe pain within a relatively short period of time. Dr Gothelf applied the correct test in giving an opinion on causation.

Mr De Greenlaw submitted that the Commission was required to apply the commonsense test of causation in Kooragang Cement Pty Ltd v Bates[1]. Mr De Greenlaw also referred to the authority in Taxis Combined Services (Victoria) Pty Ltd v Schokman[2] with regard to multiple causes for a condition.

[1] (1994) 10 NSWCCR 796 at [810].

[2] [2014] NSWWCCPD 18 at [54].

Mr De Greenlaw noted that all of the doctors who had seen the applicant agreed that the procedure proposed by Dr Khatib was reasonably necessary treatment. The applicant had established on the balance of probabilities that employment was the main contributing factor to an aggravation of the underlying degenerative condition at his left knee. Mr De Greenlaw submitted that there should be an award for the applicant with respect to the past s 60 expenses as well as the proposed knee surgery.

Respondent’s submissions

Mr Barter submitted that the respondent’s case could be summarised by the passage in Dr Powell’s supplementary report cited above. Although Dr Powell agreed that employment was a contributing factor he did not believe there was sufficient evidence to conclude that it represented the main contributing factor in the aggravation of the degenerative disease process in the left knee. The applicant’s ongoing symptoms and functional limitations were consistent with the natural history of that process and the proposed knee replacement was required on the basis of the pre-existing pathology and not the effects of any injury sustained in the course of employment.
Mr Barter noted that the medicolegal experts were of the same opinion that the current state of the applicant’s left knee was multifactorial. The respondent said the main contributing factor to the aggravation of a disease was the natural deterioration of the condition itself stemming from the original injury in 2002 and the operation that followed.

Mr Barter submitted that it was not correct that the applicant’s left knee condition was quiescent for 10 years. Mr Reemeyer gave evidence of the applicant limping throughout the whole of his employment with the respondent. The applicant said this was due to problems with his right leg. Mr Barter submitted that it was open to infer that the applicant had continuing problems but was able to self manage the arthritis as suggested by the applicant’s statement. Mr Barter submitted that the applicant’s evidence indicated that his knee was still symptomatic but capable of being managed. This indicated a continuity of symptoms from the time of the 2002 injury onwards.

Mr Barter submitted that Dr Gothelf’s history was not entirely accurate. Dr Gothelf took a history of no major issues other than stiffness from time to time until May 2020. The clinical records showed that symptoms were reported in September 2018. Dr Gothelf did not have the history of limping or complaints being made to the employer of knee symptoms, or the symptoms recorded in the clinical notes up until 2008 and after 2018.

The change in forklift brand occurred several years before the complaints of pain in 2018. Mr Barter submitted that there was no connection between the change in forklift and the reported symptoms. Mr Barter noted that the applicant did not draw a link between the forklifts and his increased symptoms until after he had consulted his solicitor.

Mr Barter submitted that it was open to the Commission to find that the aggravation of the osteoarthritic disease was multifactorial. The main contributing factor was the natural progression of the disease following the frank injury in 2002 and subsequent medical treatment.

Even if there was an injury, a second question arose as to whether the need for surgery resulted from the injury. Mr Barter agree that the correct test was that set out in Kooragang Cement Pty Ltd v Bates. Mr Barter submitted there was no break in the chain between the injury in 2002 and the present need for surgery. The respondent submitted that the requirement for the operative procedure had its origins in the injury in 2002 and this continued in an unbroken chain.

Applicant’s submissions in reply

Mr De Greenlaw referred to Mr Reemeyer’s evidence that he could see the applicant was in more pain on 7 May 2020. The applicant was described as an honest person who tells it like it is.
Mr De Greenlaw noted that Dr Liang also supported the existence of a causal connection as did Dr Gothelf.

FINDINGS AND REASONS

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.”

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).”
Section 16 of the 1987 Act provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—

(a) the injury shall, for the purposes of this Act, be deemed to have happened—

(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
A consistent opinion has been given by the medical practitioners involved in this case that the applicant has severe osteoarthritis at his left knee. There is also consensus that the cause of the applicant’s current condition and need for surgery is multifactorial.
The evidence establishes that the applicant sustained an injury to his left knee in October 2002, which required arthroscopic surgery. Both the 2002 injury and the surgical treatment that followed would have been significant contributing factors in the current presentation.
It has also been suggested by Dr Powell that the multiple surgeries at the applicant’s right knee indicate a constitutional contribution to the now severe osteoarthritis at the left knee. Altered biomechanics caused by the right knee condition may also have played a role in the increased symptoms at the left knee. This proposition is not disputed by the applicant’s doctors and I am prepared to accept that each of these circumstances has also contributed to the applicant’s present condition.
The medical practitioners also agree that the nature and conditions of the applicant’s employment with the respondent has been a contributing factor.
The applicant’s duties for the respondent have been consistently reported and described by the applicant. The applicant’s evidence with regard to his duties and the forklifts used to perform those duties has been corroborated by Mr Reemeyer. The applicant has described in considerable detail the change in forklifts in 2016; the manner in which he accessed the Linde forklifts; and the difficulties he experienced in performing this manoeuvre. Both medicolegal experts and Dr Liang appear to have been provided with a sufficiently accurate history as to the applicant’s employment duties prior to expressing their opinions on causation.
Where the doctors differ is on the degree to which the applicant’s employment has contributed to the applicant current condition.

In the circumstances of this case, for the applicant to have a compensable injury pursuant to s 4(b)(ii), it is necessary for him to establish, on the balance of probabilities, that employment was “the main contributing factor to an aggravation, acceleration, exacerbation or deterioration” of the osteoarthritic disease process at his left knee.

In Federal Broom Co Pty Ltd v Semlitch[3], Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[3] [1964] HCA 34.
In AV v AW[4]at [65]-[78] Snell DP considered a number of authorities on s 4(b) and said:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor. The following may be taken from the above:
(a)     The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)     The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)     In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[4] [2020] NSWWCCPD 9.

Both Dr Gothelf and Dr Liang have given opinions that the applicant’s employment with the respondent was the main contributing factor to an aggravation or exacerbation of the applicant’s pre-existing osteoarthritis at the left knee.
Dr Gothelf’s opinion was criticised by the respondent on the basis that he did not obtain an accurate history as to the ongoing effect of the 2002 injury. The respondent submitted that Dr Gothelf took a history of the applicant having no issues with the left knee until May 2020, which was said to be inconsistent with the clinical records which show a number of consultations in relation to left knee symptoms up until 2008 and from 2018 onwards.
The applicant’s evidence is that he made a good recovery after the 2002 injury and the surgery that followed. The applicant was able to resume pre-injury duties with his previous employer and continued to work including in employment with the respondent for a number of years prior to a deterioration in his left knee symptoms.
The clinical records show only intermittent references to the left knee in the context of the 2002 injury and a separate event up until 2008. I accept the applicant’s submission that there was then a 10 year period in which there is no evidence of the applicant seeking medical treatment or reporting symptoms in the left knee.
To the extent that Dr Gothelf appears to have relied on a history of the applicant having no further symptoms following his recovery from surgery in 2002 until early 2020, I accept that this was inaccurate having regard to the clinical records.
The respondent also relies on the evidence of Mr Reemeyer of the applicant having a limp from the time he commenced employment with the respondent, dangling his left leg over the side of the forklift and complaining of ongoing knee symptoms in the workplace. The respondent submits that the applicant continued to have a symptomatic left knee but was able to manage it himself.
The pre-employment medical assessment performed by Sonic showed that the applicant had a functional left and right knee in 2017 at the time he commenced permanent employment, albeit not without some restriction. Whilst the applicant did not disclose the 2002 work injury he did disclose that he had arthritis in the left knee.
The applicant’s own evidence does not suggest that the knee was asymptomatic after the earlier surgery. The applicant describes being able to “manage” the symptoms that remained. Consistently with the applicant’s evidence, however, the clinical records suggest an increase or intensification in left knee symptoms from 2018 onwards. In 2020, the symptoms became sufficiently severe as to warrant a referral to a specialist.
Dr Gothelf’s reference to symptoms commencing in early 2020, appears to be a reference to a particular exacerbation or flare of symptoms around May 2020 as described in the applicant’s statement evidence. This particular exacerbation is also referred to in the treating medical evidence including the reports from Dr Chow and Dr Khatib, as having occurred without any particular precipitating event. Mr Reemeyer’s lay evidence also indicates that a particular deterioration in the applicant’s condition was observed by him in early May 2020.
The history recorded by an expert does not have to correspond with complete precision to the proposition on which the opinion is based. It is a question of fact whether the case supported is sufficiently like the one under consideration to render the opinion of the expert of any value. It is a question of whether the hypothetical material put to the expert witnesses represents a “fair climate” for the opinions they expressed: Paric v John Holland (Constructions) Pty Ltd[5].
[5] [1984] 2 NSWLR 505 at 509-510 and [1985] HCA 58.
Whilst I am not satisfied that the applicant’s left knee was completely asymptomatic prior to employment with the respondent, I do accept that there was an aggravation or exacerbation of the pre-existing osteoarthritis at the left knee commencing from around 2018 onwards, becoming significantly more severe in 2020. Although Dr Gothelf has not recorded a history of the onset of increased symptoms in 2018, limping or complaints of symptoms at work, he also does not appear to have proceeded on the basis that the knee was completely symptom free after the first surgery. I am not satisfied that the inaccuracy in Dr Gothelf’s history renders the entirety of his opinion unreliable.
The aggravation of the applicant’s left knee symptoms has occurred temporally around two years after the Linde forklifts were introduced. This is consistent with the opinions of Dr Liang and Dr Gothelf regarding the effects of the repeated movement of getting in the forklift over time. The applicant’s knee condition appears to have progressively deteriorated since that time. During this period, the applicant maintained employment with the respondent and continued to perform the duties which required him to alight and disembark from the Linde forklifts.
Dr Gothelf and Dr Liang have both given the opinion that these particular duties were the main contributing factor to the aggravation or exacerbation of the applicant’s osteoarthritis. Dr Gothelf based his opinion both on the timing of the aggravation in the context of changes to the forklift used by the applicant and studies which showed that work activities that are physical with excessive knee bending and heavy physical demand do contribute to the development of knee arthritis.
Similarly, Dr Liang has expressed the view that the movement of bending the knee to pull himself up into the forklifts had over a number of years caused repetitive wear and tear. Dr Liang noted that there was no other acute incident to provoke the increase in pain. Importantly, Dr Liang said that although day-to-day life may have contributed it would not have done so to the degree seen clinically in the applicant.
Weighing against the opinions of Dr Gothelf and Dr Liang is the opinion of Dr Powell. Dr Powell, whilst taking an accurate history of the applicant’s duties for the respondent has not engaged sufficiently with the applicant’s evidence as to the impact of those duties on his knee condition. In particular, Dr Powell has not explained why the particular mechanism described by the applicant of alighting the forklift would not have created additional “wear and tear” as suggested by both Dr Gothelf and Dr Liang. Dr Powell has not dealt sufficiently with the applicant’s evidence, as supported by the treating medical evidence, of an increase in symptoms temporally after the introduction of the Linde forklifts and the applicant’s reported experience of increased pain when getting in and out of those forklifts.
In addition, I am not persuaded that Dr Powell has asked himself the correct question in giving his opinion. In his reports, Dr Powell referred to there being insufficient evidence that employment was the main contributing factor to the development or permanent aggravation of the knee condition. The reference to “permanent aggravation” appears to add a gloss or more stringent test than what is in fact required by s 4(b)(ii).
For these reasons, I prefer the opinions of Dr Gothelf and Dr Liang to those expressed by Dr Powell. I am satisfied that employment with the respondent was the main contributing factor to an aggravation or exacerbation of the applicant’s previous knee condition. I am satisfied that the applicant has sustained an injury which meets the definition in s 4(b)(ii).
A separate question arises as to whether the total knee replacement surgery proposed by Dr Khatib is reasonably necessary as a result of that injury.
There is no dispute on the evidence before me that the surgery proposed by Dr Khatib represents reasonably necessary medical treatment. Having regard to the considerations set out in cases such as Diab v NRMA Ltd[6] and Rose v Health Commission (NSW)[7], I am satisfied on the evidence before me that the treatment is reasonably necessary. What requires determination by me is whether the need for such treatment “results from” injury.
[6] [2014] NSWWCCPD 72.
[7] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
In determining this question, 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.”

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.”

It is uncontroversial that a need for treatment can result from multiple causes. In Murphy v Allity Management Services Pty Ltd[8] Roche DP stated:
“[57] …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.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[8] [2015] NSWWCCPD 49.
For the reasons given above, I am satisfied that the applicant’s current need for surgery is multifactorial. The applicant’s 2002 injury, the previous arthroscopic surgery, altered biomechanics due to his right knee condition, constitutional predisposition and the natural progression of the applicant’s osteoarthritis are all causes of the present need for treatment.
The work injury need not be the only or even a substantial cause of the need for treatment. I am, however, satisfied on the evidence of Dr Gothelf and Dr Liang that the work injury has materially contributed to the present need for a total knee replacement surgery by bringing forward the need for surgery to the present time.
I am satisfied that as a result of the work injury it is reasonably necessary that the applicant undergo the left total knee replacement proposed by Dr Khatib.
There will be an award in favour of the applicant for the costs of and incidental to the proposed surgery pursuant to s 60 of the 1987 Act.

In view of my findings above, it is also appropriate that that there be an order that the respondent pay the applicant’s reasonably necessary incurred medical and related treatment expenses pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or Medicare notice of charge.

[2021] NSWPIC 223

2 July 2021