McDiarmid v Boral Limited
[2022] NSWPIC 293
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McDiarmid v Boral Limited [2022] NSWPIC 293 |
| APPLICANT: | Anthony McDiarmid |
| RESPONDENT: | Boral Limited |
| MEMBER: | 15 June 2022 |
| DATE OF DECISION: | Jacqueline Snell |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims medical and related treatment for alleged consequential injury to his left hip including computerised tomography (CT) guided injection therapy; alleged consequential injury and need for CT guided injection therapy placed in issue; Held- the applicant sustained consequential injury to his left hip and CT guided injection therapy is reasonably necessary treatment for that injury. |
| DETERMINATIONS MADE: | 1. The applicant sustained consequential injury to his left hip resulting from injury he sustained to his left knee on 19 April 2018 in the course of his employment with the respondent. 2. The applicant has an entitlement to medical and related treatment payable under s 60 of the Workers Compensation Act 1987 for the consequential injury the applicant sustained to his left hip, including the costs associated with CT guided injection therapy which is reasonably necessary treatment for that injury. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Anthony McDiarmid (Mr McDiarmid) was employed by the respondent, Boral Limited (Boral) as a Screed-Board Operator. Mr McDiarmid commenced working with Boral in or about 2001 and was made redundant on 21 July 2020. Mr McDiarmid is currently 54 years of age.
While it is not disputed Mr McDiarmid sustained injury to his left knee on 19 April 2018 in the course of his employment with Boral, the consequential injury Mr McDiarmid alleges he has sustained to his left hip is disputed. Mr McDiarmid was issued with notice dated 21 July 2021 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998[1] in which he was notified of the decision to dispute consequential injury to his left hip.
[1] Application to Resolve a Dispute (ARD) at page 27.
ISSUES FOR DETERMINATION
The parties agree the following issues are not now in dispute:
(a) any entitlement Mr McDiarmid may have to weekly compensation payable under the Workers Compensation Act 1987 (1987 Act), and
(b) any entitlement Mr MacDiarmid may have to costs payable under s 60 of the 1987 Act relevant to his left total knee replacement in February 2020 and left knee arthroscopy in June 2019.
The parties agree the following issues remain in dispute:
(a) whether Mr McDiarmid sustained consequential injury to his left hip resulting from injury sustained to his left knee on 19 April 2018, and if so
(b) whether Mr McDiarmid requires medical and related treatment resulting from injury sustained to his left hip, including the CT guided injection therapy.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The parties attended a teleconference on 11 April 2022. Ms Ross, solicitor, appeared for Mr McDiarmid and Mr McDiarmid was present. Mr Murray, solicitor, appeared for Boral and Mr Chanine, a representative of Boral was also present. At the teleconference, Mr McDiarmid discontinued his claim for permanent impairment compensation payable under s 66 of the 1987 Act.
The parties attended a conciliation/arbitration hearing on 30 May 2022. Mr Hickey of counsel appeared for Mr McDiarmid, instructed by Ms Ross. Mr Saul of counsel appeared for Boral, instructed by Mr Murray. Mr McDiarmid was present, as was Mrs McDiarmid in her capacity as support person.
Following my discussions with counsel 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 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;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 6 April 2022 and attached documents lodged on behalf of Mr McDiarmid;
(d) Application to Admit Late Documents dated 23 May 2022 and attached documents lodged on behalf of Mr McDiarmid, and
(e) Application to Admit Late Documents dated 23 May 2022 lodged on behalf of Boral Limited.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr McDiarmid
In his statement dated 15 June 2021 Mr McDiarmid explained that following his left knee injury on 19 April 2018 he attended on his general practitioner and following diagnostic imaging was referred for orthopaedic review with Dr Rizkallah. Under the care of Dr Rizkallah, Mr McDiarmid ultimately came to a left total knee replacement on 4 February 2020, having previously come to arthroscopy on 31 May 2018, Platelet-Rich Plasma (PRP) injection therapy on 28 November 2018, 19 December 2018 and 4 January 2019 and further arthroscopy on 6 June 2019, without significant relief.
Mr McDiarmid said there was “some complications immediately after the TKR”. He explained there was significant tenderness in his left calf and while Dr Rizkallah expressed concern Mr McDiarmid may have developed a deep vein thrombosis, “an x-ray of the left knee and a calf ultrasound study showed no complications arising from the procedure”.
Relevant to his left hip, Mr McDiarmid said:
“Soon after the TKR when Is started to walk, I developed pain in the left hip. I find today that I still have pain in the left hip, not so much when walking but when lying in bed, which is more like an ache. I wake up with a sharp pain in the left hip of a morning.
I hasten to add that at no time prior to the left knee injury, or indeed the left TKR, did I suffer any pain in my left hip. In November 2020 I did have an ultrasound guided injection into the left hip, but this had no effect in reducing the problems in the left hip”.
Treating medical evidence
Medical and Fitness Centre
Mr McDiarmid is under the general medical care of practitioners practising out of Medical and Fitness Centre.
The medical centre’s clinical records as at 23 May 2019 are in evidence before the Commission[2]. These clinical records are of no assistance in determining the dispute that has arisen relevant to the injury Mr McDiarmid has sustained to his left hip as they pre-date the date of his left total knee replacement, following which Mr McDiarmid said his left hip became symptomatic.
[2] ARD commencing at page 102.
The medical centre’s clinical records as at 19 April 2022 are also in evidence before the Commission[3] and it is evident from these records that Mr McDiarmid first made mention of left hip pain to Dr Mahmood on 9 November 2020, some nine months after he came to total left knee replacement. On that occasion Dr Mahmood noted “L hip pain lying on side” and referred Mr McDiarmid for ultrasound to investigate the possibility of left hip bursitis, which was confirmed with the ultrasound report dated 16 November 2020 reporting:
“Greater trochanteric bursitis. The patient may benefit from a CT guided steroid injection”.
[3] Applicant’s AALD at page 15.
Mr McDiarmid underwent the CT guided steroid injection on 27 November 2020, with Dr Mahmood noting on 6 December 2020:
“Hip pain getting better
Has had steroid injection
Able to get better ROM on L knee since hip inj.”
However, with Mr McDiarmid’s left knee remaining quite problematic on 2 June 202, Dr Mahmood referred him for second opinion with Dr Olschewsk, with Dr Mahmood noting on 26 July 2021 that while Mr McDiarmid had had “good effect” from a left hip steroid injection his left knee pain remained the same. On 26 August 2021 Dr Mahmood noted that Dr Olschewsk had advised Mr McDiarmid “he cannot do much further”.
When last reviewed by Dr Mahmood on 2 March 2022 Dr Mahmood noted Mr McDiarmid remained under the orthopaedic care of Dr Rizkallah and had come to steroid injection for his left knee pain a “few weeks ago”.
Dr Rizkallah
Mr McDiarmid came under the orthopaedic care of Dr Rizkallah for the injury he sustained to his left knee on 19 April 2018 and a number of Dr Rizkallah’s reports[4] are in evidence before the Commission, as are his clinical records[5].
[4] ARD commencing at page 47.
[5] ARD commencing at page 59.
In his report dated 18 February 2020, Dr Rizkallah reported to Boral that Mr McDiarmid had come to total left knee replacement on 4 February 2020 “and is currently having physiotherapy treatment and his prognosis is generally good”. In a later report dated 10 June 2020, Dr Rizkallah reported to Boral that on examination on 27 May 2020, while Mr McDiarmid’s left total knee replacement was “in good order” he had an attack of gout causing “pain, swelling and warmth and this should settle with the appropriate treatment for gout”.
In a subsequent report dated 5 February 2021, Dr Rizkallah reported to Dr Mahmood at Medical and Fitness Centre following his annual review of Mr McDiarmid that Mr McDiarmid “has some complaints in relation to his left knee with pain over the lateral aspect of the joint during maximal flexion with intermittent swelling and stiffness”. He reported too “clinical examination demonstrates a slight limp”. Dr Rizkallah planned to review Mr McDiarmid.
It does not appear that Mr McDiarmid made complaint to Dr Rizkallah about his left hip symptoms at his annual review with Dr Rizkallah following his left total knee replacement.
Dr Olschewsk
With Mr McDiarmid’s left knee remaining problematic following his total left knee replacement, he sought second opinion from Dr Olschewsk, whose reports dated 10 June 2021[6], 30 June 2021[7], 11 August 2021[8], 17 August 2021[9] and 5 May 2022[10] are in evidence before the Commission.
[6] Applicant’s AALD at page 5.
[7] Applicant’s AALD at page 6.
[8] Applicant’s AALD at page 7.
[9] Applicant’s AALD at page 8.
[10] Applicant’s AALD at page 2.
In his initial report dated 10 June 2021, Dr Olschewsk noted that Mr McDiarmid had come to total left knee replacement under the care of Dr Rizkallah, without improvement of his pain “and if anything he thinks the pain is now worse”. In addition to his symptomatic left knee, Dr Olschewsk noted Mr McDiarmid to also have occasional discomfort in his buttock and left thigh and reported “lying on the left hip can be uncomfortable”. Dr Olschewsk noted Mr McDiarmid had come to injection into the left hip, which he reported was uncomfortable for him and did not provide him with relief. At the time of initial assessment Dr Olschewsk did not discount that Mr McDiarmid’s left hip pain as a possible cause of his ongoing left knee pain.
On review on 30 June 2021, following clinical examination and review of diagnostic imaging relevant to the left knee and the left hip, Dr Olschewsk arranged for diagnostic hip injection as he had formed the impression:
“While a portion of Anthony’s knee discomfort may be arising from the knee, I think a significant cause of his ongoing symptoms is pathology in the left hip”.
On review on 11 August 2021, Dr Olschewsk noted Mr McDiarmid’s left knee remained symptomatic and had remained unchanged despite the diagnostic hip injection. Dr Olschewsk arranged for Mr McDiarmid to undergo a bone scan and when he returned for review on 17 August 2021, Dr Olschewsk explained to Mr McDiarmid that he “cannot find a certain cause of his ongoing left knee pain” and was “unable to offer him a solution”.
In his most recent report, which is addressed to Mr McDiarmid’s solicitors, Dr Olschewsk reported that X-ray of Mr McDiarmid’s left hip demonstrated “some subtle narrowing of the hip joint space consistent with mild degenerative changes” and reported that the diagnostic hip injection provided Mr McDiarmid with “excellent relief of his buttock and thigh pain but no improvement of his knee symptoms”. In response to specific questioning as to whether Mr McDiarmid’s left hip injury is a result of his left knee injury, Dr Olschewsk said:
“Although I did not obtain a clear history of Mr McDiarmid injury his left hip at the time of his initial left knee injury, it is common for normal joints adjacent to abnormal joints to be affected by the abnormal joint. Following this principle it is certainly possible that Mr McDiarmid’s favouring of his left knee may be negatively impacting on the loading and stressors placed on the left hip joint, increasing Mr McDiarmid’s discomfort in his left hip. Although I cannot say that Mr McDiarmid’s left hip injury has been caused by his left knee injury, the left knee injury is likely contributing to an exacerbation of symptoms related to degenerative changes in the left hip”.
Asked to provide “any other relevant comments”, Dr Olschewsk wrote:
“…my primary concern when I was seeing Mr McDiarmid was to assess his ongoing pain and functional limitations to see if I could improve his condition surgically. I was not specifically evaluating him at that time looking for the primary cause of his ongoing problems. That being said, it is my impression that had Mr McDiarmid not suffered the workplace injury, he would not be having the pain and functional difficulties he is currently suffering from related to his left knee. Furthermore, his left knee problems caused by the workplace injury may not have caused his left hip concerns but certainly can be exacerbating symptoms related to his left hip issues”.
Independent medical evidence
Dr Hitchen
Mr McDiarmid was assessed by Dr Hitchen on 22 May 2018[11]. In his statement Mr McDiarmid said he developed pain in his left hip after his left total knee replacement on 4 February 2020 and there is no mention of left hip injury in Dr Hitchen’s report.
[11] Reply at page 17.
Dr Edwards
Mr McDiarmid has been assessed by Dr Edwards on three occasions, with Dr Edwards reporting on 7 November 2018[12], 13 November 2018[13], 1 March 2019,[14] 29 March 2019[15], 28 May 2021[16] and 22 May 2022[17]. As noted, Mr McDiarmid said he developed pain in his left hip after his left total knee replacement, and therefore Dr Edward’s reporting in 2018 and 2019 are of no assistance in the determination of the issues before the Commission.
[12] Respondent’s AALD at page 19.
[13] Respondent’s AALD at page 28.
[14] Reply at page 1.
[15] Reply at page 3.
[16] Reply at page 7.
[17] Respondent’s AALD at page 31.
In his report dated 28 May 2021 Dr Edwards noted Mr McDiarmid had come to left total knee replacement on 4 February 2020 under the care of Dr Rizkallah and reported:
“Mr McDiarmid said he has developed some discomfort in his left hip within a few months of that operation. He had an injection into the left greater trochanter region which was extremely painful, and he feels it did not help”.
Dr Edwards reported that Mr McDiarmid’s left knee remained symptomatic in that Mr McDiarmid reported he had constant pain in his left knee with numbness on the left side of the knee. Dr Edwards reported:
“He said he is able to walk for about 20 minutes. He has more difficulty going down steps. He can go up steps one at a time…
He feels that his left knee may still be swollen, and he is aware of some increased heat in the knee. He has limited flexion of the knee, but feels he can straighten it fully. He has difficulty getting his shoes and socks on”.
On examination, Dr Edwards noted Mr McDiarmid had a slight limp favouring his left leg, and relevant to examination of his left hip, Dr Edwards reported that while Mr McDiarmid had indicated the greater trochanter as the site of his occasional discomfort:
“There was no discomfort present today and no tenderness. Abduction against resistance did not cause symptoms. Flexion did not trouble him”.
Dr Edwards provided opinion Mr McDiarmid had had a fair result from his left total knee replacement. Dr Edwards also said he could not find any clinical evidence of trochanteric bursitis and provided opinion Mr McDiarmid did not suffer any left hip condition consequential to his left knee injury “as suggested by Dr Endrey-Walder” (discussed below).
In his subsequent report dated 2 May 2022, Dr Edwards said of Mr McDiarmid:
“…he developed some left hip region discomfort several months after the total knee replacement. He had an injection into the left greater trochanter region, which was very painful, but did not help him.
Since I last saw him, Mr McDiarmid said he sought a second opinion from Dr Eli Olschewsk (Orthopaedic Surgeon). This was because of his continuing left knee pain, and he could feel that his left knee was warmer than the right. He had some scans carried out. He was advised that it was possibly his left hip which was causing his knee pain, so he had x-rays of his left hip. A left total hip replacement was suggested, he said.
Mr McDiarmid said that he went back to see Dr Rizkallah at 1 year and 2 years post-operatively and was advised that his knee seemed to be okay.
Mr McDiarmid said he had a further injection into the left knee about 12 months ago., after an ultrasound, but this did not help much”.
Dr Edwards reported of Mr McDiarmid’s current symptoms:
“Mr McDiarmid said in relation to his left hip, he is able to sit for about 30 minutes. The discomfort is intermittent. He gets pain on the lateral aspect of the hip and indicated a spot below the anterior superior iliac spine, and slightly posterolateral to it. He said this eases when he mobilises. It wakes him at night. He finds stairs are a problem, and any inclines.
In his left knee, he has intermittent symptoms which he said are mostly present. He thinks there is some swelling of the knee. Flexion of the knee causes discomfort”.
On examination on this occasion, Dr Edwards reported Mr McDiarmid walked without a limp and did not appear to be in discomfort. Relevant to examination of his left hip Dr Edwards reported:
“… Mr McDiarmid could flex to 110 degrees. Internal and external rotation were normal without discomfort. He indicated the area below and lateral to the anterior superior iliac spine as the site of his hip discomfort.
There was no tenderness around the trochanteric bursa and no swelling. I do not believe he has any trochanteric bursitis at today’s examination”.
Dr Edwards accepted Mr McDiarmid “has some ongoing discomfort in the knee” despite coming to left total knee replacement and accepted Mr McDiarmid will require further medical management of his left knee. However, as regards Mr McDiarmid’s left hip, he said:
“I cannot find any obvious abnormality in Mr McDiarmid’s left hip. There was no tenderness around the trochanteric bursa and no swelling. I do not believe that he has any trochanteric bursitis at today’s examination”.
In response to specific questioning as to whether “any condition present in the left hip ‘resulted from’ injury to the left knee”, Dr Edwards provided opinion “… this is not the case” and said:
“It is not medically probable that the left knee injury would cause an injury to the left hip. The cause of Mr McDiarmid’s left hip condition is unknown”.
Dr Endrey-Walder
Mr McDiarmid has been assessed by Dr Endrey-Walder on two occasions, with Dr Endrey-Walder reporting on 12 September 2019[18] and 3 March 2021[19]. It is of no surprise there is no mention of left hip injury in Dr Endrey-Walder’s initial report.
[18] ARD at page 34.
[19] ARD at page 41.
However, in his subsequent report following assessment of Mr McDiarmid just over one year after his left total knee replacement, Dr Endrey-Walder wrote of Mr McDiarmid’s “present condition and complaint” relevant to his left hip:
“Since soon after the operation, as Mr McDiarmid began ambulating he developed pain at the lateral aspect of the left hip of which he complained to his GP repeatedly in the months to come.
…
In November 2020 his GP arranged for an Ultrasound-guided injection into the greater trochanteric bursa of the left femur which had, unfortunately, not impacted on his left hip area”.
Dr Endrey-Walder described Mr McDiarmid as reporting the following symptoms :
“It’s particularly sore when I lie on it.
It doesn’t affect my walking”.
Dr Endrey-Walder reported relevant to his clinical examination of Mr McDiarmid:
“There was well localized, almost pinpoint tenderness at the tip of the greater tronchanter of the left femur.
He had a good range of movement at the left hip without apparent aggravation”.
Dr Endrey-Walder’s opinion included the following:
“Soon after he began ambulating following the operation, undoubtedly on account of the abnormal gait he would have had over a prolonged period of time, he began experiencing pain at the lateral aspect of the left hip which is clearly an instance of trochantic bursitis.
Unfortunately, he has not derived much benefit from the injection in November last year, and one’s recommendation would be for that to be repeated once or even twice if needs be.”
Submissions
Mr Saul and Mr Hickey made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this particular matter. A recording of counsels’ submissions is available to the parties.
Determination
Consequential injury to the left hip
Liability is not disputed for the injury Mr McDiarmid sustained to his left knee on 19 April 2018 in the course of his employment with Boral. However, liability is disputed for the consequential injury Mr McDiarmid alleges he has sustained to his left hip.
Mr McDiarmid has the onus of proving he sustained consequential injury to left hip as a result of the injury he sustained to his left knee on 19 April 2018 in the course of his employment with Boral. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[20] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[20] [2008] NSWCA 246 (Nguyen).
With allegation by Mr McDiarmid that the injury he has sustained to his left hip is in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Paramatta v Brennan[21] Deputy President Snell relevantly discussed consequential injury and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon V Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCP 8. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act”.
[21] [2016] NSWWCCPD23.
In the circumstances of this particular matter it is important to recognise the injury Mr McDiarmid sustained to his left knee in the course of his employment with Boral may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to his left hip. Relevant to this issue of causation of the consequential injury Mr McDiarmid alleges he has sustained to his left hip, in Kooragang v Cement Pty Ltd v Bates[22] Kirby J said:
“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 case 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.”
[22] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Mr McDiarmid said that soon after his total left knee replacement on 4 February 2020 he developed left hip pain. Mr McDiarmid said too that prior to his total left knee replacement he had not suffered any left hip pain. It is evident that despite his total left knee replacement, Mr McDiarmid remained significantly troubled by his left knee, so much so that he sought a second orthopaedic opinion from Dr Olschewsk in mid-June 2021 and reportedly came to further steroid injection under care of Dr Rizkallah in early 2022. As at 2 May 2022 Dr Edwards accepted Mr McDiarmid required further medical management of his left knee.
Mr McDiarmid made complaint of left hip pain to Dr Mahmood as early as 9 November 2020. Dr Mahmood referred Mr McDiarmid for an ultrasound, with the ultrasound report dated 16 November 202 demonstrating greater trochanteric bursitis. Mr McDiarmid came to CT guided steroid injection on 27 November 2020 and while Dr Mahmood noted on 6 December 2020 that Mr McDiarmid’s hip pain was “getting better”, Mr McDiarmid has reported elsewhere that he had no relief from this injection.
When Mr McDiarmid was assessed by Dr Endrey-Walder on 3 March 2021 (being approximately one year after Mr McDiarmid came to left total knee replacement) Dr Endrey-Walder provided a history of Mr McDiarmid’s left hip becoming symptomatic soon after he began walking after his left total knee replacement. Dr Endrey-Walder provided diagnosis of trochanteric bursitis, which he considered was caused by Mr McDiarmid’s “the abnormal gait he would have had over a prolonged period of time”.
When Mr McDiarmid was orthopaedically reviewed by Dr Olschewsk a short while later (during the months of June through to August 2021) Dr Olschewsk noted too that Mr McDiarmid’s left hip was symptomatic and following diagnostic investigation, which included diagnostic imaging and injection, in response to specific questioning by Mr McDiarmid’s solicitors, Dr Olschewsk provided opinion Mr McDiarmid’s left knee injury “is likely contributing to an exacerbation of symptoms related to degenerative changes in the left hip”. Furthermore, he said when asked to provide “any other comments”:
“…his left knee problems caused by the workplace injury many not have caused his left hip concerns but certainly can be exacerbating symptoms relating to his left hip issues”.
Following a review of the evidence as a whole and careful consideration of the submissions made by both counsel, I am of the view Mr McDiarmid has provided a consistent history of injury occurring on 19 April 2018 in the course of his employment with Boral and sequelae, including an onset of symptoms in his left hip after his left total knee replacement under the care of Dr Rizkallah.
When considering the plethora of authority relevant to the aggravation, acceleration, exacerbation or deterioration of an injury in the nature of a disease injury (see Federal Broom Co Pty Ltd v Semlitch[23]; Cant v Catholic Schools Office[24]) I accept Mr McDiarmid has discharged the onus of proof required of him and I am satisfied Mr McDiarmid has sustained consequential injury to his left hip in the nature of an exacerbation of a disease injury as a result of the injury he sustained to his left knee on 19 April 2018 in the course of his employment with Boral.
[23] [1964] HCA 34.
[24] [2000] NSWCC 37.
Both Dr Endrey-Walder and Dr Edwards are general surgeons. I prefer the independent medical examiner opinion of Dr Endrey-Walder to that of Dr Edwards despite the fact that Dr Edwards has had the opportunity to assess Mr McDiarmid on two occasions since he came to left total knee replacement, whereas Dr Endrey-Walder has only been afforded one opportunity. While Dr Edwards has provided opinion following assessment on 28 May 2021 and 2 May 2022 that there was no trochanteric bursitis on clinical examination, it is evident the ultrasound left hip report dated 17 November 2020 (which is dated shortly after Mr McDiarmid’s complaint of left hip pain to Dr Mahmood on 9 November 2020) demonstrated greater trochanteric bursitis for which Mr McDiarmid was subsequently treated with CT guided left greater trochanteric bursal injection on 27 November 2020. It is not apparent to me that Dr Edwards had this diagnostic imaging available to him at the time of his reporting on either 28 May 2021 or 2 May 2022.
Although Dr Endrey-Walder provided a history of Mr McDiarmid’s left hip becoming symptomatic closer in time to his left knee replacement about which he complained to his general practitioner “repeatedly in the months to come” (which is not noted in the clinical records of Dr Mahmood), Dr Olschewsk, who is the orthopaedic surgeon to who Mr McDiarmid was referred for second opinion, provided opinion Mr McDiarmid’s left knee injury “is likely contributing to an exacerbation of symptoms related to degenerative changes in the left hip” without apparent knowledge as to when it was Mr McDiarmid’s left hip became symptomatic after his total left knee replacement but with the benefit of diagnostic imaging investigating, which included imaging and injection.
While Dr Edwards also provided opinion in response to specific questioning that it is not medically probable that Mr McDiarmid’s left knee injury would cause an injury to the left hip, this is not the opinion provided by Dr Olschewsk who accepted it was “certainly possible that Mr McDiarmid’s favouring of his left knee may be negatively impacting on the loading and stressors placed on the left hip joint, increasing Mr McDiarmid’s discomfort in his left hip”. Although Dr Olschewsk was unable to say that Mr McDiarmid’s left knee injury “caused” his left hip injury, he was able to say that Mr McDiarmid’s left knee injury “is likely contributing to an exacerbation of symptoms related to degenerative changes in the left hip”. I prefer the opinion of Dr Olschewsk to that of Dr Edwards as Dr Olschewsk is Mr McDiarmid’s treating orthopaedic surgeon, whereas Dr Edwards is an independent medical examiner without speciality in orthopaedic surgery.
Treatment
As I have determined Mr McDiarmid has sustained consequential injury to his left hip resulting from injury sustained to his left knee on 19 April 2018 in the course of his employment with Boral, it follows Mr McDiarmid has an entitlement to medical and related treatment payable under s 60 of the 1987 Act for the injury. However, I am required to determine whether CT injection therapy is reasonably necessary treatment for that injury.
Section 60 of the 1987 Act provides:
“60 (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).”
What constitutes reasonably necessary treatment was considered in the context of what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[25]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[25] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Ltd[26], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[26] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts in each case as discussed in Kooragang and in this particular matter Mr McDiarmid is required to establish the consequential injury I have determined he sustained to his left hip materially contributes to the need for the CT guided injection therapy he has undertaken. This requirement was confirmed in Murphy v Allity Management Services Pty Ltd[27].
[27] [2015] NSWWCCPD 49.
Prior to Mr McDiarmid coming to left total knee replacement on 4 February 2020, his left hip was asymptomatic. Mr McDiarmid complained to Dr Mahmood of left hip pain on 9 November 2020 and was referred for an ultrasound to investigate. The ultrasound report dated 17 November 2020 provided comment by Dr Ketheswaran, radiologist, that Mr McDiarmid “may benefit from a steroid injection”, which Mr McDiarmid undertook on 27 November 2020 (albeit perhaps with minimal relief). Dr Endrey-Walder provided comment on 3 March 2021 “one’s recommendation would be for that to be repeated once or even twice if needs be”. While Dr Edwards provided no comment as to whether CT guided injection therapy is reasonably necessary treatment for Mr McDiarmid’s left hip condition, this is perhaps unsurprising in circumstances where Dr Edwards reported there was no evidence of trochanteric bursitis on either occasion he had the opportunity to assess Mr McDiarmid.
Following a review of the evidence as a whole and careful consideration of the submissions made by both counsel, I am of the view that CT guided injection therapy was reasonably necessary treatment for the consequential injury Mr McDiarmid has sustained to his left hip. Following complaint and investigation of his left hip pain, Mr McDiarmid’s treating general practitioner arranged for him to undergo CT guided injection therapy on the recommendation of the radiologist who reviewed the ultrasound scan of Mr McDiarmid’s left hip and, despite a reported limited effectiveness of the treatment at the time, Dr Endrey-Walder has recommended the treatment be repeated.
SUMMARY
It is not disputed Mr McDiarmid sustained injury to his left knee on 19 April 2018 in the course of his employment with Boral and I have determined Mr McDiarmid sustained consequential injury to his left hip.
Mr McDiarmid has an entitlement to medical and related treatment payable under s 60 of the 1987 Act for the consequential injury he has sustained to his left hip, including the costs associated with CT guided injection therapy.
0
9
1