McBain v Active Contracting Pty Ltd
[2021] NSWPIC 462
•16 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | McBain v Active Contracting Pty Ltd [2021] NSWPIC 462 |
| APPLICANT: | Wayne McBain |
| RESPONDENT: | Active Contracting Pty Ltd |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 16 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for cost of bilateral total knee replacements; accepted injury to left knee; whether applicant suffered a frank injury to his right knee at the same time; alternatively whether worker developed consequential condition in his right knee as a result of accepted injury; respondent accepted proposed left total knee replacement is reasonably necessary as a result of the accepted injury; whether proposed right total knee replacement is reasonably necessary as a result of the accepted injury; whether the chain of causation was broken by a subsequent injury to the right knee; Held - claim that applicant suffered a frank injury to his right knee at the same time not made out; finding that applicant developed an altered gait as a result of the accepted injury; finding that the need for the right total knee replacement was materially contributed to by the accepted injury; right total knee replacement is reasonably necessary as a result. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to his left knee arising out of or in the course of his employment with the respondent on 23 July 2015. 2. The applicant developed a consequential condition in his right knee as a result of the injury to his left knee. 3. Award for the respondent in the claim for frank injury to the right knee on 23 July 2015. 4. The bilateral total knee replacement surgery proposed by Dr Richard Verhuel is reasonably necessary treatment as a result of the applicant’s injury. 5. The respondent to pay the applicant’s reasonably necessary costs of, and incidental to, the bilateral total knee replacements at the gazetted rate pursuant to section 60 of the Workers Compensation Act1987. |
STATEMENT OF REASONS
BACKGROUND
Mr Wayne McBain (the applicant) was employed by Active Contracting Pty Ltd (the respondent) as an arborist on 23 July 2015 when a branch struck his left knee, knocking him to the ground. An MRI revealed that his left knee was fractured.
The respondent accepted liability for injury to Mr McBain’s left knee.
Mr McBain claims he sustained a twisting injury to his right knee on 23 July 2015. Alternatively, he claims he developed a consequential condition in his right knee because of his altered gait following the injury to his left knee. He claims compensation pursuant to section 60 of the Workers Compensation Act1987 (the 1987 Act) for the cost of bilateral total knee replacements proposed by Dr Richard Verhuel.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (the Commission) on behalf of Mr McBain on 27 August 2021.
When these proceedings commenced, the respondent disputed liability to pay for either total knee replacement proposed by Dr Verhuel. At a telephone conference on 24 September 2021, the respondent advised that the dispute in relation to the left knee was not pressed.
The respondent disputes Mr McBain’s claim that he suffered injury to his right knee on 23 July 2015, and his claim that he developed a consequential condition in his right knee as a result of the injury to his left knee.
ISSUES FOR DETERMINATION
During the conciliation phase of the proceedings, Mr McBain discontinued his claim in respect of past medical expenses.
The parties agree that the following issues remain in dispute:
(a) whether Mr McBain sustained injury to his right knee on 23 July 2015;
(b) whether Mr McBain developed a consequential condition in his right knee as a result of the accepted injury to his left knee, and
(c) whether the right total knee replacement proposed by Dr Verhuel is reasonably necessary treatment as a result of injury to the right knee or the development of a consequential condition in the right knee.
PROCEDURE BEFORE THE COMMISSION
Parties attended a conciliation/arbitration hearing on 27 October 2021. The proceedings were conducted by telephone. Mr McBain was represented by Mr Nathan Willoughby of counsel, instructed by Mr Michael Evers. The respondent was represented by Mr Paul Stockley of counsel, instructed by Ms Alexandra Gajic.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Mr McBain’s evidence
Mr McBain’s evidence is set out in statements dated 16 February 2017, 12 June 2019 and 9 April 2021[1]. Parts of his statements refer to injury to his lower back in the incident on 23 July 2015. As these proceedings relate only to Mr McBain’s knees, only the relevant parts of his statements are referred to below.
[1] ARD pages 1, 4 and 6.
Mr McBain describes how he started work for the respondent as a tree lopper. In 2015, the respondent asked him to obtain a Certificate III qualification as an arborist. On 23 July 2015, he was undertaking training with an instructor when a large branch spun on a rope, hitting him on the left knee and knocking him to the ground. He immediately felt that his knee was broken and he was in severe pain. He reported the incident to his supervisor.
The following day, Mr McBain saw his employer’s doctor who sent him for an x-ray and then for an MRI which revealed a fracture in his left knee. He was referred to orthopaedic surgeon, Dr Jonathon Young, whom he saw two or three times. Dr Young advised that no surgery would help.
Mr McBain says he has had ongoing problems with his left leg since that time. He has had very little time off work. The insurer has paid for any time off work and for his medical treatment. He eventually completed the Certificate III training but found it very demanding.
Mr McBain states that, prior to 23 July 2015, he had not suffered any injury to his knees and was not experiencing any symptoms in either.
Mr McBain says that, several months after the incident, he is not sure exactly when, he noticed that he was experiencing symptoms in his right knee including pain and discomfort, restricted movement and instability. He first noticed the symptoms after a period of sustained limping as he tried to protect his injured left leg. During this period, he was using crutches and a walking stick at various times, and was placing particular stress through his right leg. He has continued to suffer symptoms in his right leg since.
In his statement dated 12 June 2019, Mr McBain states that he may have suffered injury to his right knee in the incident itself but his main concern at the time was his left knee, and he only later noticed the symptoms in his right knee. He has undergone PRP injections at the hands of Dr Verhuel which his employer has paid for. He has been told that he will come to knee replacement surgery but he wants to put it off for as long as possible, given his age.
In his statement dated 9 April 2021, Mr McBain repeats his evidence that he has suffered symptoms in his left knee since 23 July 2015, and started to notice symptoms in his right knee several months later. He further states that, on 2 November 2018, he was walking through long grass collecting branches when he stepped heavily into a grass-covered hole. He was unable to regain his balance because he was unable to take weight on his left leg because of his injured knee. He twisted his right knee and experienced sharp pain. He reported the incident to his manager and completed his shift with difficulty.
On 4 November 2018, Mr McBain attended at John Hunter Hospital because of the pain in his right knee. On 21 July 2020, he ceased work because of increasing pain in both knees and his lower back. He has since been reviewed by Dr Verhuel who recommends bilateral total knee replacements. Having discussed the surgery with Dr Verhuel, Mr McBain believes he now needs to undergo the proposed treatment.
Dr Young’s reports
Dr Young first saw Mr McBain on 30 July 2015. His report to Mr McBain’s general practitioner shows that he was asked to see Mr McBain in relation to a fracture of his left lateral tibial plateau.
Dr Young took a history that a large log struck Mr McBain on his left knee. He noted that initial radiographs failed to show any fracture but an MRI had shown an undisplaced osteochondral fracture of the lateral tibial plateau. Dr Young said he could not improve the fracture by surgery and Mr McBain was best treated non-operatively. He said he had suggested Mr McBain discard his crutches and start fully weight-bearing in a graduated manner, moving to fully weight-bearing, initially on one crutch and then graduating to a stick[2].
[2] ARD page 76.
Dr Young saw Mr McBain for review on 6 August 2015. He reported that Mr McBain was at work doing selected duties and that his left knee was still sore[3].
[3] ARD page 77.
Dr Young saw Mr McBain again on 7 September 2015 at which time he was “walking reasonably well with only a small limp”. Mr McBain reported that his left knee still felt weak from time to time and he had the sensation that it was a little unstable. Dr Young recommended continuing exercise and physiotherapy[4].
[4] ARD page 78.
On 9 November 2015, Dr Young reported that he had reviewed Mr McBain[5]. His left knee was still sore. Dr Young said he would arrange to re-image the knee and see what was going on.
[5] ARD page 80.
On 16 November 2015, Dr Young reported that the further MRI had shown “by and large resolution of the bone bruising” and he thought it best to wait and see how the knee behaved over coming months[6].
[6] ARD page 80.
On 15 February 2016, Dr Young reported that he had examined “the knee”. He referred to the MRI in November 2015. He said Mr McBain remained symptomatic, and it was likely he would experience symptoms from time to time. Based on the MRI, there was no indication to operate[7].
[7] ARD page 82.
Dr Young’s reports make no mention of Mr McBain’s right knee.
Dr Verhuel’s reports
Dr Verhuel first saw Mr McBain on 7 December 2017. He reported to general practitioner,
Dr Robert Baker[8], noting that Mr McBain had sustained a tibial plateau fracture on the left side in the workplace injury which had been treated non-operatively.[8] ARD page 123.
Dr Verhuel said Mr McBain “may well have sustained a twisting injury to his right knee at the time” but it was difficult to say because his left knee had taken precedence at that time. Nonetheless, he was favouring his right knee for quite some time while recovering from the left knee injury and “now gets quite significant pain in both his knees”. MRIs confirmed osteoarthritis in both knees, to a lesser extent in the left.
Dr Verhuel recommended a “very cautious, stepwise and progressive approach to his management”. As Mr McBain had already tried time, anti-inflammatories and analgesics,
Dr Verhuel recommended the next step was to offer him a Synvisc injection. Should that fail, there were other non-operative and operative strategies available over the course of time.Dr Verhuel saw Mr McBain again on 14 October 2019. He reported to Dr Baker that
Mr McBain’s symptoms were ongoing and deteriorating, and he had had arranged for an MRI evaluation of both knees.On 29 October 2019, Dr Verhuel reported to Dr Baker that he had looked at Mr McBain’s MRIs[9]. He said Mr Verhuel “certainly has pretty significant arthritis in the medial aspect of his right knee” but there was “a bit of life left” in his left knee. The symptoms were “significant” and the only way to deal with them would be right total knee replacement.
[9] ARD page 134.
Dr Verhuel said he remained of the firm opinion that Mr McBain’s right knee symptoms were a direct result of his left knee injury and the subsequent altered gait.
Dr Verhuel acknowledged that opinions differed about the effect of altered gait following an injury to one limb. He said “[c]ertainly there are arguments that are made in regard to symptoms in the opposite, or an injured leg, as a result of these injuries”. He cited an article by an orthopaedic surgeon in Canada prepared for what appears to be the Canadian equivalent of the Commission which he said “clearly indicates that altered mechanics of gait can precipitate arthritis in the contralateral limb”.
On 30 March 2021, Dr Verhuel saw Mr McBain for review “in regard to clarifying the whole situation relating to both of his knees” . He reported to Dr Baker. He referred to the fracture of his left knee in 2017 and said:
“He as well sustained a twisting injury to his right knee but at the time his left knee took precedence given the significance of the injury.”[10]
[10] ARD page 149.
Dr Verhuel then said:
“Given what happened to his left knee he certainly was having to favour that right knee for quite some time and on a background of the twisting injury I do believe that the osteoarthritis in his right knee has been directly aggravated as a result of his workplace injury.”
Dr Verhuel said he believed the symptoms in Mr McBain’s right knee warranted total knee replacement. He said he had discussed this with Mr McBain in October 2019. Since then, his left knee had been continuing to deteriorate and the only way to deal with that, given the articular incongruity, was to perform a total knee replacement. Dr Verhuel said further procedures such as arthroscopy were contra-indicated and cortisone injections would only give Mr McBain very brief respite from his symptoms. Hyaluronic acid and PRP injections did not have a great deal to offer him. Dr Verhuel said he needed left and right knee replacement surgery as a direct result of his workplace injury.
Dr Bodel’s reports
Dr James Bodel saw Mr McBain for assessment on 7 July 2017 and provided a report dated 18 July 2017[11]. He described Mr McBain’s injuries, relevantly, as a fracture of the left knee and consequential injury to the right knee. He described the incident on 23 July 2015 and subsequent investigations and treatment of Mr McBain’s left knee. He said:
“He has also developed some anterior knee pain in the right side because he has been favouring that side to protect the injured left side while it was recovering.”
[11] ARD page 47.
As to treatment, Dr Bodel said he recommended a review with Dr Young, with a possibility of arthroscopy. A short course of physiotherapy and gymnasium-based exercise could be tried.
Dr Bodel next saw Mr McBain on 4 December 2018 and reported on 29 January 2019[12]. He again described Mr McBain’s injuries, relevantly, as a fracture of the left knee and consequential injury to the right knee. He noted Mr McBain’s complaints included pain in both knees, worse on the right than on the left, he could not kneel, squat or climb without aggravating the pain, and he had difficulty going downstairs and walking on uneven ground.
[12] ARD page 54.
Dr Bodel noted that Mr McBain had had Synvisc injections in both knees with only temporary benefit. He said:
“The diagnosis here is the undisplaced fracture [in the left knee], the consequential aggravation, acceleration, exacerbation and deterioration of the early arthritic change in both knees caused by the original injury at work on 23 July 2015 and this has been aggravated by continuing work.”
Dr Bodel said the pathology in the right knee, which may have pre-existed the injury to the left , had been aggravated, exacerbated, accelerated and deteriorated by the nature and conditions of his work and favouring that right side to protect the injured left side.[13]”
[13] ARD page 59.
Dr Bodel said it was “inevitable” that Mr McBain would need total knee replacements.
On 25 November 2020, Dr Bodel reviewed Mr McBain[14]. He again described the injuries as fracture of the left knee and consequential injury to the right knee. He referred again to the injury to the left knee, that Mr McBain began to favour the right and developed increasing pain in that area. At the time of his examination, the pain was still worse on the right.
[14] ARD page 61.
On 7 July 2021, Dr Bodel again reviewed Mr McBain and provided a further report[15]. He noted that Mr McBain still had pain in both knees, worse on the right. In response to a question as to whether the right knee injury “was a direct result of the incident on 23 July 2015”, Dr Bodel said:
“Based in the history given to me, the right knee injury occurred at the same time as the injury to the left knee. The left knee was more seriously injured as there was a fracture in that knee but no fracture on the right hand side that I am aware of. The injury caused by the event at work on 23 July 2015 has at the very least caused the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative change in both knees.”
[15] ARD page 68.
In response to a question as to whether the right knee condition was “a consequential injury to the incident on 23 July 2015,” Dr Bodel said:
“In part, therefore, the right knee condition is a consequential injury because he has been favouring that side to protect that more injured left side and that is caused aggravation, acceleration, exacerbation and deterioration of underlying degenerative change.”
Dr Bodel said the total knee replacement was reasonably necessary treatment for the management of injuries to both knees.
Dr Smith’s reports
Orthopaedic surgeon, Dr Anthony Smith, saw Mr McBain for assessment on 24 January 2017 at the request of the respondent[16]. He took a history of the incident on 23 July 2015 consistent with other reports.
[16] Reply page1.
Dr Smith noted that Mr McBain’s right knee “would also play up” and there was some inflammation in the knee. He noted that both knees were stable. He noted that Mr McBain had osteoarthritic changes in both knees. Clinically, the right was somewhat more affected than the left. He said Mr McBain had osteoarthritic changes in both his hips “and that is responsible for his abnormal gait”.
On 16 April 2019, Dr Smith saw Mr McBain for review[17]. He noted symptoms in both knees. He noted “the suggestion” in Dr Verhuel’s report of 7 December 2017 that Mr McBain may have sustained a twisting injury to his right knee on 23 July 2017. He noted that Dr Verhuel took a history of Mr McBain having right knee pain, more than on the left, and favouring his right knee for some time after recovering from the left knee injury. He noted that an MRI confirmed osteoarthritis in the right knee.
[17] Reply page 8.
Dr Smith reported that Mr McBain complained that his left knee was painful and his right knee was “equally severely affected”. He then stated “[t]here was no injury to his right knee”. Dr Smith noted that an MRI on 28 October 2017 demonstrated triple compartment osteoarthritis of mild to moderate severity and no post-traumatic lesion.
Dr Smith said it was not quite clear exactly what happened to the left knee in the work incident on 23 July 2015 but it was conceivable that Mr McBain suffered some form of crush injury to the lateral tibial plateau. He said:
“There is no other injury on that date. There is no relationship between the subsequent development of right knee symptoms from his pre-existing right knee osteoarthritis and […] the work incident on 23 July 2015.”
Dr Smith considered that it appeared that Mr McBain’s hip arthritis was making some contribution to his “apparent right knee symptomatology” but it would not be responsible for all his right knee symptoms. In his opinion Mr McBain required no operative intervention at that stage for either knee. It might be required in the future but, if so, it would be unrelated to the work incident.
Dr Smith was asked to comment whether Mr McBain had suffered consequential condition in the right knee as a result of the injury to the left knee on 23 July 2015. In response, Dr Smith said the bilateral knee osteoarthritis was “familial inherited condition”. It was not consequent to his aggravation of his left knee osteoarthritis. Dr Smith did not comment directly on any role played by the altered gait in Mr McBain’s right knee symptoms.
SUBMISSIONS
The respondent’s submissions
Mr Stockley submits that the proposition that Mr McBain sustained a frank injury to his right knee on 23 July 2017 is not supported by any contemporaneous record. There is no reference to it in medical data at the time. Dr Young, whom Mr McBain saw soon after the injury, makes no mention of it.
Mr Stockley says that, considering that the respondent now accepts that the proposed left total knee replacement is reasonably necessary, the respondent is not in a position to argue that any symptoms in Mr McBain’s left knee since July 2015 are unrelated to the injury. The respondent acknowledges some contribution by the 2015 injury to the process in the left knee.
Regarding Mr McBain’s right knee, Mr Stockley submits there is limited information in the clinical records, and there is some inconsistency in Mr McBain’s evidence. In his statement dated 16 February 2017, Mr McBain refers to his altered gait but makes no complaint of pain in his right knee, only in his lower back radiating into his left buttock. In his statement dated 12 June 2019, Mr McBain says he noticed symptoms in his right knee and lower back several months after the incident.
Mr Stockley submits that, in his third statement, Mr McBain refers to an incident on 2 November 2018 when he says he twisted his right knee because of the state of his left knee. Mr Stockley acknowledges there is no evidence to challenge Mr McBain’s account of the incident and that he reported the matter to his supervisor.
Mr Stockley submits that, assuming I accept Mr McBain’s account of the incident on 2 November 2018, then following Kooragang Cement v Bates[18], the chain of causation and the nexus to Mr McBain’s accepted injury may well be made out. If so, the question arises to what extent if any, the incident on 2 November 2018 contributed to the need for surgery in the right knee.
[18] 35 NSWLR 452 (Kooragang).
Mr Stockley submits that it is clear from the evidence that the osteoarthritis in Mr McBain’s right knee was always greater then in his left. However, none of the doctors explain what the arthritic process is and how the events Mr McBain relies on contributed to it. While it is not necessary for Mr McBain to identify a change in pathology, he nevertheless has to demonstrate, in accordance with the principles in Kumar v Royal Comfort Bedding[19], that the consequential condition arose as a result of the accepted injury.
[19] [2012] NSWWCCPD 8 (Kumar).
The applicant’s submissions
Mr Willoughby acknowledges there is no contemporary medical evidence referring to a frank injury to Mr McBain’s right knee. However, he submits I should have regard to Dr Verhuel’s report suggesting that the left knee took precedence at the time over the right. Further, that Dr Smith noted in his report of 24 January 2017 when describing symptoms in the three months after the injury, that Mr McBain said his right knee would also play up and there was inflammation in the knee.
Mr Willoughby submits that neither Dr Bodel nor Dr Verhuel could be sure whether there was a frank injury, but whether Mr McBain had a frank injury or suffered a consequential condition is a distinction without a difference. I would have regard to Mr McBain’s evidence that he had no symptoms in the right knee as at the date of injury and he has symptoms up until now since then, and now requires bilateral total knee replacements.
Mr Willoughby submits that Dr Bodel and Dr Verhuel have a “foot in both camps” as to whether there was a frank injury or consequential condition. Mr Willoughby submits that the evidence supports either finding; it does not support the conclusion contended for by the respondent.
As to the incident on 2 November 2018, Mr Willoughby submits that I would have regard to Mr McBain’s evidence in his third statement in which he describes the circumstances of stepping heavily into a grass covered hole, that he was unable to regain his balance by taking more weight on his left leg because of his left knee injury, and that he twisted his right knee. On that basis, Mr Willoughby submits there is no break in the chain of causation.
As to the consequential condition, Mr Willoughby submits that, in his report of 29 October 2019, Dr Verhuel refers to the altered gait that Mr McBain developed subsequent to his left knee injury. Dr Verhuel acknowledges differing medical opinions but he provides evidence by reference to the journal article to support his view. Mr Willoughby submits that Dr Verhuel engaged with the issue and supports Mr McBain’s claim.
Submissions in reply
In reply, Mr Stockley acknowledges that some doctors do refer to Mr McBain’s altered gait but the questions remain whether it resulted from the accepted left knee injury and whether the accepted injury materially contributed to the condition requiring the total knee replacement.
Mr Stockley concedes that the left knee warrants the proposed surgery. As the evidence indicates that the condition of Mr McBain’s right knee is worse, the respondent cannot say that the proposed treatment is not reasonably necessary for Mr McBain’s condition, but the question remains as to causation.
CONSIDERATION
There is no dispute that Mr McBain injured his left knee in the workplace incident on 23 July 2015. The respondent does not dispute his claim that the proposed left total knee replacement is reasonably necessary treatment as a result of that injury.
Mr McBain claims that he suffered injury to his right knee on 23 July 2015 within the meaning of section 4(a) of the 1987 Act and, alternatively, that he developed a consequential condition in his right knee as a result of his accepted injury.
Mr McBain bears the onus of proof. The standard is on the balance of probabilities, meaning that I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[20]; Nguyen v Cosmopolitan Homes[21].
[20] [2008] NSWWCCPD 134.
[21] [2008] NSWCA 246.
Considering first the claim that Mr McBain suffered a frank injury to his right knee on 23 July 2015, Mr McBain’s evidence is that he first noticed symptoms in his right knee several months after the incident, although he cannot say exactly when. A delay in onset would not necessarily rule out a frank injury but, considering the totality of the evidence. I am not persuaded that this claim is made out.
Dr Young first saw Mr McBain on 30 July 2015. He took a history of the incident and suggested Mr McBain discard his crutches and start weight-bearing. He saw Mr McBain a further four times up to 15 February 2016. During that time, he noted that Mr McBain was doing selected duties and that his left knee was still sore and felt weak from time to time.
Dr Young recommended continuing exercise and physiotherapy. He made no mention of the right knee.It is reasonable to conclude that Dr Young would have reported any symptoms in
Mr McBain’s right knee had Mr McBain mentioned them. It is reasonable to infer that it was at least eight months before Mr McBain started to experience symptoms in his right knee.The absence of contemporaneous evidence is not determinative of causation where there is other evidence: Owen v Motor Accidents Authority of NSW[22]; Bugat v Fox[23]. However, in this case there is no other evidence positively supporting Mr McBain’s claim of a frank injury.
[22] [2012] NSWSC 650.
[23] [2014] NSWSC 888.
Dr Verhuel reported on 7 December 2017 to Mr McBain’s general practitioner that Mr McBain “may well have sustained a twisting injury to his right knee at the time” but it was difficult to say because his left knee had taken precedence at that time. He went on to say that
Mr McBain was favouring the right knee for quite some time while recovering from his left knee injury, and now had “quite significant pain” in both. Dr Verhuel did not offer any further opinion as to an injury to the right knee on 23 July 2015.In his report of 30 March 2021, Dr Verhuel said that, as well as the injury to his left knee,
Mr McBain sustained a twisting injury to his right knee but his left knee took precedence at the time. He said that favouring his right knee “for quite some time” on a background of the twisting injury had directly aggravated his osteoarthritis.Dr Verhuel had not mentioned a twisting injury previously, and he did not explain the basis for his opinion. It is not clear how he reached this conclusion some five years after the original incident and why it he had not mentioned it previously.
Dr Bodel, in his first report, described Mr McBain’s injuries as a fracture of the left knee and consequential “injury” to the right knee. In his second report on 29 January 2019, Dr Bodel said the pathology in the right knee may have pre-existed the injury to the left but it had been aggravated “by the nature and conditions of his work and favouring the right side to protect the left”. The relevance of the nature and conditions of Mr McBain’s work is not clear, and that is not his claim.
In subsequent reports, Dr Bodel summarised Mr McBain’s injuries, relevantly. as a fracture of the left knee and consequential injury to the right. He indicated that the increasing pain in
Mr McBain’s right knee was the result of favouring his left.Then, on 7 July 2021, Dr Bodel said in response to a question whether Mr McBain’s right knee injury was “a direct result of the incident on 23 July 2015” that, based on the history given to him, the right knee injury occurred at the same time as the injury to the left knee. He went on to say that the injury caused by the event at work “has at the very least caused the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative change in both knees”.
Dr Bodel did not explain what history was given to him that led him to the conclusion that both injuries occurred at the same time. He did not explain what had changed from his previous reports. He did not explain the basis for his opinion.
On 24 January 2017, Dr Smith noted that Mr McBain’s right knee “would also play up”. He noted osteoarthritic changes in both knees and that, clinically, the right was more affected than the left. Dr Smith did not suggest the possibility of an injury to the right knee at the same time as the injury to the left.
In his report of 16 April 2019, Dr Smith noted “the suggestion” by Dr Verhuel that Mr McBain may have sustained a twisting injury to his right knee on 23 July 2015. Dr Smith’s opinion was that there was no relationship between the subsequent development of right knee symptoms and the work incident on 23 July 2015.
I am not persuaded by Dr Verhuel’s and Dr Bodel’s references to a twisting injury that that is what occurred on 23 July 2015. Neither doctor mentioned such injury in previous reports and neither explains his opinion.
Considering all of the evidence, I am not persuaded that Mr McBain suffered injury to his right knee in the incident on 23 July 2015.
Did Mr McBain develop a consequential condition in his right knee; if so, is the proposed treatment reasonably necessary as a result of the injury?
The second question that arises is whether Mr McBain developed a consequential condition in his right knee injury as a result of his accepted left knee injury and, if so, whether the proposed treatment is reasonably necessary as a result of that injury.
Mr McBain is not required to establish “injury” to his right knee. The principles relevant to determining claims involving consequential conditions were discussed by Deputy President Roche in Kumar where he said[24]:
“By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.”
[24] Kumar at [35].
Nor is it necessary for Mr McBain to establish, in a claim for a consequential condition, that he developed pathology in his righty knee, only that the proposed surgery is reasonably necessary “as a result of” the workplace injury.[25]
[25] Kumar at [55].
In Murphy v Allity Management Services Pty Ltd[26] Deputy President Roche said at [57]-[58]:
“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 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).”
[26] [2015] NSWWCCPD 49.
Mr McBain’s evidence is that he first noticed the symptoms in his right knee after a period of “sustained limping” as he tried to protect his injured left leg. During this time, he was using crutches and a walking stick at various times and was placing particular stress through his right leg. It is not clear for how long he used the crutches and the walking stick.
On 7 September 2015, Dr Young reported that Mr McBain was “walking reasonably well with only a small limp”.
On 7 December 2017, Dr Verhuel reported that Mr McBain had been favouring his right knee “for quite some time” while recovering from the left knee injury, and now had significant pain in both knees.
Dr Bodel did not refer in terms to “altered gait” but he referred several times to Mr McBain favouring his right side to protect his injured left knee.
Dr Smith noted in his report of 24 January 2017 that Mr McBain had an “abnormal gait”, although he attributed it to osteoarthritic changes in his hips and not to his workplace injury.
There is no evidence to suggest that Mr McBain had an altered gait for any reason prior to the workplace injury. I find that he developed an altered gait following the workplace incident because he was protecting his injured left knee.
In his report of 29 October 2019, Dr Verhuel said he remained of the firm opinion that
Mr McBain’s right knee symptoms were a direct result of his left knee injury and his subsequent altered gait. He acknowledged that opinions differ about the effect of an altered gait following an injury to one limb. In support of his opinion, he referred to the Canadian article which he said “clearly indicates that altered mechanics of gate can precipitate arthritis in the contralateral limb”.Dr Verhuel confirmed his opinion that Mr McBain’s right knee had been directly aggravated as a result of his workplace injury. Dr Bodel agreed that favouring his right knee led to the consequential condition.
Although I find Dr Bodel’s opinion unclear in parts, it is clear that he considered that
Mr McBain developed a consequential condition in his right knee as a result of the injury to his left.I prefer the opinions of Dr Verhuel and Dr Bodel to that of Dr Smith. In particular, Dr Verhuel saw Mr McBain over more than two years. He was well-placed to observe the progress of both knees and to provide an opinion as to the effect of the altered gait.
I am satisfied that Mr McBain developed a consequential condition in his right knee as a result of the injury to his left knee.
As to the incident on 2 November 2018, there is no dispute that Mr McBain twisted his right knee when he stepped into a grass-covered hole. There is no evidence to challenge his account. I accept his evidence that he was unable to regain his balance because he could not take weight on his left leg because of his left knee injury. I find that the injury to his right knee was the result of his accepted injury and that the chain of causation was not broken.
In April 2019, Dr Smith’s opinion was that no operative intervention was required in respect of either knee but that Mr McBain might come to that in time, although not as a result of any workplace injury. Dr Smith has not seen Mr McBain since then.
Dr Verhuel saw Mr McBain for review in March 2021, and Dr Bodel saw him in July 2021. They have had the opportunity to see him recently and remain of the view that the proposed treatment is reasonably necessary for the condition in both knees. I prefer their opinions to that of Dr Smith.
I find that Mr McBain developed a consequential condition in his right knee because of the altered gait he developed as a result of the accepted injury to his left knee. I find that the accepted injury materially contributed to the need for the right total knee replacement.
I find that the respondent is liable for the reasonably necessary costs of, and incidental to, the bilateral total knee replacements at the gazetted rate pursuant to section 60 of the
1987 Act.
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