McKinnon v Port Marina Pty Ltd Summary

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McKinnon v Port Marina Pty Ltd [2022] NSWPIC 654
APPLICANT:	Jodie McKinnon
RESPONDENT:	Port Marina Pty Ltd
Member:	25 November 2022
DATE OF DECISION:	Catherine McDonald
CATCHWORDS:	WORKERS COMPENSATION - Fall at work causing rupture of breast implant; dispute as to whether worker suffered an injury being a pathological change; Kennedy Cleaning Services Pty Ltd v Petkoska, Castro v State Transit Authority (NSW), North Coast Area Health Service v Felstead, Military Rehabilitation and Compensation Commission v May discussed; treatment fell within the definitions in section 59 of the Workers Compensation Act 1987 (1987 Act) even though the original implant was not an artificial aid; Held – award for weekly compensation and section 60 expenses of the 1987 Act.
FINDINGS MADE:	1. The applicant suffered an injury on 6 May 2021 which caused the rupture of a left breast implant.
determinations made:	2. Pursuant to s 37 of the Workers Compensation Act 1987, the respondent is to pay the applicant weekly compensation $878.40 from 31 August 2021 to date and continuing. 3. The respondent is to pay the applicant’s s 60 expenses resulting from the injury to her left breast including the expenses of and incidental to the removal and replacement of the ruptured implant in her left breast. 4. Award for the respondent on the claim with respect to a secondary psychological condition.

STATEMENT OF REASONS

BACKGROUND

Jodie McKinnon was employed by Port Marina Pty Ltd (Port Marina) as a cleaner. On 6 May 2021 she slipped and fell while mopping a bathroom floor, landing on her left breast and left side. About 20 years before, Ms McKinnon had undergone breast augmentation surgery. Investigations after the fall showed that the implant in her left breast had ruptured and the implant in her right breast was bulging. Ms McKinnon says that she suffered a secondary psychological condition as a result of the injury.
Ms McKinnon claims weekly compensation from 31 August 2021 and medical expenses, including the cost of surgery to remove and replace the implant in her left breast.
Port Marina denies that Ms McKinnon suffered an injury as defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) because she did not suffer a pathological change as a result of the incident. It also disputes that Ms McKinnon suffered a compensable secondary psychological condition and that she is incapacitated for work. Port Marina disputes that the proposed medical treatment is reasonably necessary medical treatment pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 14 September 2022 when Mr Young of counsel appeared for Ms McKinnon and Mr McMahon of counsel appeared for Port Marina.
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.
During conciliation, Ms McKinnon discontinued the claim for s 60 expenses with respect to treatment to the right breast.
Ms McKinnon was employed by two other entities as well as Port Marina at the time of the injury. It was agreed that her pre-injury average weekly earnings in all three jobs were $1,098.
In the Reply, Port Marina sought leave to dispute that the removal and replacement of breast implants was not medical or related treatment as defined in s 59 of the 1987 Act, that an injury was suffered and that Ms McKinnon suffered a secondary psychological injury. Mr Young agreed those matters were in dispute.
Mr Young made oral submissions at the arbitration hearing but there was insufficient time to complete the hearing and I directed that written submissions be filed. The parties filed submissions in accordance with the directions made.
Ms McKinnon was directed to serve an updated quote for surgery by 30 September 2022. That document was not received until 3 November 2022 and was limited to Dr Hingston’s fees only.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply, and
(c)    bundle of documents concluding with an email dated 3 November 2022.
Ms McKinnon made a statement on 10 June 2022. She said that she underwent breast augmentation surgery for cosmetic reasons 20 years ago and that she had not experienced any complications after that surgery. On 6 May 2021 she slipped on a wet floor and landed heavily on her left side and breast. She felt immediate pain in her left breast and it was tender to touch. She felt that it was bruised and swollen.
Ms McKinnon said she went straight to her general practitioner, Dr Wai, who referred her for an MRI scan. A week later she complained of stronger pain and Dr Wai prescribed Endone. Dr Wai subsequently prescribed Targin. The MRI scan was undertaken on 24 May 2021 and Ms McKinnon was referred to Dr Hodge and then Dr Hingston. Because the claim was denied, she has not had surgery.
As a result of the delay in treatment and her uncertain future, Ms McKinnon said that she experienced stress and anxiety. Her general practitioner referred her to a psychologist but there was a delay in obtaining an appointment due to the pandemic. She saw Ms Tomlinson on three occasions in telehealth consultations under a Mental Health Care Plan (MHCP).
Ms McKinnon stopped working at her three jobs because of the injury. She said:
“I am still receiving mental health treatment and am in desperate need of the surgery. I feel like the surgery would help my mental health because I would be able to move on from the self-conscious worry of having uneven breasts and being abandoned by the system that is supposed to protect us.
I desperately want to return to work and restart my life.
Despite wanting to return to work and restore my life back to normal, each time I think about returning to work in any form I feel anxious and I start to feel overwhelmed.
The delay in receiving treatment has caused me a lot of frustration and anxiety.”
At the beginning of her statement, Ms McKinnon said that she worked at a food processing facility in October 2021 for a couple of weeks and left because she did not like it. She then described commencing work as a cleaner at three locations in early 2021.
Ms McKinnon said she tried to work for one week after the injury then stopped due to excessive pain. She said she cannot sleep or lie on her left side. She also said that she is in receipt of a disability benefit from Centrelink.
Dr Wai’s notes record that Ms McKinnon attended on 6 May 2021 saying that she had had an injury a week ago at work and suffered left breast pain. Dr Wai did not observe a bruise. Dr Wai queried whether there was a soft tissue injury or a tear and referred Ms McKinnon for an ultrasound. On 15 May 2021 Dr Wai noted that Ms McKinnon continued pain in her left breast area and had not yet had the ultrasound. Ms McKinnon requested a stronger painkiller. She attended again requesting a stronger painkiller on 19 May 2021.
The ultrasound report does not appear in Dr Wai’s notes though she noted on 22 May 2021 that it showed a left breast implant intracapsular rupture and referred Ms McKinnon to Port Macquarie Base Hospital Emergency Department.
An MRI scan was undertaken on 24 May 2021 and the clinical history in the report confirmed that an ultrasound showed a capsular rupture after a fall two weeks ago. The MRI scan was reported by Dr Chong who said there was an intracapsular rupture of the left breast implant. The contents of the implant appeared “to be contained by the fibrous scar with a shell appearing as a group of wavy lines (linguine sign)”. In the right breast there was “a linear extension of bulging of the implant contents from the breast implant along the chest wall medially (rat tail sign) which increased the risk of rupturing of the right breast”.
On 1 June 2021 Dr Wai referred Ms McKinnon to Dr Hodge and to Dr Hingston, both of whom are surgeons.
From least 28 June 2021 Dr Wai provided certificates of capacity certifying that Ms McKinnon had no current work capacity. The date of injury on those certificates was 6 May 2021. The certificates have been provided on a continuing basis into 2022.
The reason for consultation in many of Dr Wai’s notes in late 2021 and 2022 is described as pain management. Dr Wai has continued to prescribe Targin.
Dr Hodge reported on 6 July 2021. He recorded that Ms McKinnon had pain and discomfort in her left breast where she fell and subsequent pain within her breast. He said that, on examination, both breasts felt normal and there were no overt significant findings. He said that the question was the value of “explanting the prosthesis and further prosthetic implant.” He suggested seeing Dr Moradi because he did not perform implants, only removal. Dr Hodge provided a referral to Dr Moradi.
Dr Hingston reported on 2 August 2021 noting that Ms McKinnon had ruptured bilateral breast implants as a result of falling on her left side while mopping a bathroom floor. He noted that Ms McKinnon heard a crack in her left breast at the time. He said that clinical examination did not confirm a lump but the left breast was now larger than the right, which Ms McKinnon told him was a new finding. He said that the MRI scan confirmed intracapsular rupture of the left breast implant. Dr Hingston recommended removal and replacement of both implants and said that he would seek approval for removal of the implants and insertion of new implants. Dr Hingston provided a quote for the surgery dated 2 August 2021.
On 19 August 2021 Dr Wai noted that Ms McKinnon was reluctant to see a surgeon in Sydney because there were too many cases of COVID, which Dr Wai said was understandable.
Port Marina’s solicitor sent a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 31 August 2021. The insurer said its opinion was that the breast implants were “artificial members” in accordance with s 74 of the 1987 Act however it considered that there was no entitlement because Ms McKinnon had not suffered an injury as defined in s 4 of the 1987 Act because she had not suffered a pathological change, merely damage to an artificial member.
On 4 November 2021 Dr Hingston wrote to Dr Moradi and referred Ms McKinnon to discuss removal of the ruptured implants in the public sector full-time.
Ms McKinnon’s solicitors referred her to Dr de Torres who reported on 11 February 2022 after a telehealth consultation. The history he recorded was that Ms McKinnon had hit her left breast and immediately felt pain and discomfort and that investigations revealed that the implant had ruptured. Ms McKinnon told him that the left breast felt hard, tight and uncomfortable. On a telehealth consultation he observed that Ms McKinnon had bilateral breast implants with contracture of the left implant upwards. Dr de Torres diagnosed a traumatic rupture of the left breast implant resulting in capsular contraction and pain he did not consider there was a possibility of further degeneration. Dr de Torres said that the appropriate surgery was removal of both implants.
In a supplementary report dated 19 May 2022, Dr de Torres was asked his opinion as to whether Ms McKinnon suffered a pathological change rather than damage to her breast implant. Dr de Torres said that implants cannot rupture except by sharp trauma and “capsular contracture in itself usually only causes an implant to fold.” When asked if the pathology of capsular contraction was caused by the fall, Dr de Torres said:
“A fall can cause capsular formation due to inflammation, e.g. bruising forming in association with the implant, and then the capsule contracting causing severe folding (and this can lead to rupture on occasions at the pointed end of the contracture). Therefore, I consider that the capsular contracture was caused by bruising from the fall.”
He said it was unlikely that the implants have ruptured but they would be likely to rupture during their removal which was required because of the contracture of the capsules leading to deformity.
On 3 November 2022 Ms McKinnon’s solicitors provided the commission with quotes from Dr Hingston for the cost of removal and replacement of the prosthesis in each breast.
Port Marina did not serve any medical evidence.
On 3 November 2022, by consent, Ms McKinnon’s solicitors provided a bundle of documents to the Commission which included quotes for Dr Hingston’s fees for removal and immediate replacement of the left and right breast implants.

Psychological condition

Dr Wai referred Ms McKinnon to a psychologist described as Dokotela on 6 September 2021 in respect of adjustment disorder with low and anxious mood. The referral was made under a MHCP. There was no reference to the cause of the condition in the report or in the accompanying MHCP. The only reference to the injury to Ms McKinnon’s breasts was in the list of conditions under the heading Past Medical History. That history also included a reference to depression in September 2016 and a number of references to insomnia.
Dr Wai’s notes for that day include:
“will pick up medication and psychologist referral under medicare mental health care plan
upset as her workcover not pay her anymore
they said it is body cosmetic, not cover by workcover , have to pay surgery for too much she think
she did not know want to do
request to talk with Psychologist under medicare mental health care plan.” (typographical errors corrected.
A certificate of capacity prepared on 16 September 2021 did not contain any reference to the referral.
A referral to Mr or Ms Tsomis in Kogarah on 22 November 2021 was in a similar form. Dr Wai’s notes contain only a brief reference to the referral.
On 14 February 2022 Dr Wai noted that Ms McKinnon had obtained an appointment with a psychologist in Taree and a new referral was made. Emails containing undated notes from Ms Tomlinson appear in the ARD. Ms Tomlinson recorded the following history in what appears to be the note of the first consultation[1]:
“jodie [sic] advised that in May last year she had an injury at work resulting in ongoing pain and surgery will be required to correct it. she was on workcover which has ceased, yet her pain remains - and she is unable to return to her 2 roles (until surgery has gone ahead). further complications have occurred where her solicitor has been delayed in progressing with her case, so she is unsure when she will get the surgery. This situation has had practical impacts like loss of financial security, being in pain and needing to take medication, but also emotional impacts from things like being unable to visit her children, feeling stuck, frustrated and not in control. Jodie also mentioned the impact to her self-esteem - she is a proud, strong and independent woman and doesnt like having to rely on anyone else. Jodie did advise that at times her thoughts can be pessimistic.”
[1] ARD p 132.
In the notes of a subsequent undated consultation, the psychologist noted that Ms McKinnon reported that “things have been exactly the same” and that she was still waiting to hear about her case and her operation. Ms McKinnon “discussed that her solicitor asked me to call them to speak about what they want from Jodie attending counselling.”

SUBMISSIONS

Ms McKinnon

Mr Young made oral submissions. He said there was no dispute that the incident on 6 May 2021 occurred and that Ms McKinnon fell onto her left side. She suffered pain and was treated with Endone and Targin. She was referred to Dr Hodge and Dr Hingston. As a result of the delay in treatment and her uncertain future, she suffered a secondary psychological condition. Mr Young noted that there was no medical evidence from Port Marina to dispute injury and the ongoing incapacity supported by Dr Wai’s certificates.
Mr Young took me to Dr de Torres’ report. He said there was no evidence to dispute the statement that Ms McKinnon had not experienced complications in the 20 years since the implant surgery. Dr de Torres diagnosed a traumatic rupture to the left implant, which Mr Young said had been part of Ms McKinnon’s body for 20 years. The damage she suffered was an injury to her body and the implant should not be characterised as an artificial aid.
Mr Young said that Dr de Torres’ unchallenged diagnosis was a traumatic rupture of the left breast implant resulting in capsular contraction and pain. He said that meant that the injury had disrupted the capsule, meaning that the scarring around the implant had contracted, causing pain. He said that the impact on the capsule was a pathological change, resulting in pain and that Ms McKinnon had consistently complained of pain since the incident. Mr Young said that the MRI scan report supported Dr de Torres’ opinion, particularly the reference to the fibrous scar, which is an objective diagnosis.
Mr Young summarised the medical evidence following the incident. Despite the first entry in Dr Wai’s notes, Ms McKinnon’s evidence is that she saw Dr Wai on the date of the fall. The subsequent treatment was consistent with the MRI scan findings – a complaint of pain centred on the left breast.
As a result of the injury, Mr Young said, Dr Wai observed the development of psychological symptoms which warranted a MHCP and ultimately treatment by Ms Tomlinson. Since August 2021, Dr Wai consistently certified Ms McKinnon as having no current work capacity as a result of the injury to her left breast.

Port Marina

Mr McMahon’s written submissions remain on the file.
With respect to injury, Mr McMahon noted that Dr Wai’s notes and the MRI referral referred to a fall a week earlier with ongoing pain. He said that I would find Ms McKinnon’s description of the event questionable and that Dr Wai’s notes supported a finding that there was no soft tissue injury but only a rupture of the left breast implant. He said that neither Dr Hodge nor Dr Hingston identified any pathology on examination or any clinical finding concerning the breast itself.
Mr McMahon said that Dr de Torres’ opinion was confusing because he said in his second report that an implant will only rupture by sharp trauma but there was no evidence of any such trauma. He said that the opinion in Dr de Torres’ second report – that Ms McKinnon suffered capsular contraction caused by bruising from the fall was the opposite of his original opinion. That is, he initially said that Ms McKinnon suffered a traumatic rupture resulting in capsular contraction and pain yet in the second report he said the incident caused bruising which caused the capsular contraction and then the rupture. He noted that none of the treating doctor has found bruising nor did Ms McKinnon report it.
With respect to injury, Mr McMahon said that if I found the incident occurred, I must determine if the rupture of the left breast implant is an injury in the sense of a pathophysiological change, referring to Lyons v Master Builders Association of NSW.[2] He referred to Storey v McCawley[3] where Jordan CJ held that the breaking of a denture was not a personal injury for the purpose of s 10 of the Workers Compensation Act 1926 (the 1926 Act). He cited the following passage:
“In the present case, the personal injuries sustained by the worker were to his head, cheeks and gums. His upper denture was clearly not part of his person. There is nothing in the Act which entitles him to compensation for damage to the denture merely because the incident which damaged it arose out of or in the course of his employment. There is also nothing in the Act which makes the mere fact that the incident which caused damage to his person also caused damage to something which did not form part of his person--the denture--entitled him to compensation in respect of the latter damage.
In view of the definition of ‘medical treatment’, I feel no doubt that if the injury to the worker's person had knocked out a number of his teeth, or necessitated the removal of teeth, so as to make it reasonably necessary, as a matter of ‘medical treatment’ of the personal injury, to provide him with a denture, the provision of such a denture would constitute the provision of an ‘artificial member’ within the meaning of s10(2), and he would be entitled to the cost thereof as provided by s10. I also think that if the injury to the worker's head, cheeks and gums had had the result of so altering the condition of his mouth as to make his former denture (assuming it to be undamaged, or restored to its former condition) no longer reasonably capable of serving its former purpose, the supply of an altered form of denture would constitute ‘medical treatment’ necessitated by the personal injury within the meaning of s10.”
[2] (2003) 25 NSWCA 423.
[3] (1948) 48 SR (NSW) 474.

Mr McMahon said that the decision was applied in Edkins v Agricultural Investment Australia[4] (Edkins) to the effect that the deterioration of a hip replacement was not an injury. He cited Kennedy Cleaning Services Pty Ltd v Petkoska[5] (Petkoska) where Gleeson CJ and Kirby J said that “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.”[6] He referred to Castro v State Transit Authority (NSW)[7]and said that it was authority for the proposition that an injury is a “sudden or identifiable pathological change.”
[4] (2003) 25 NSWCCR 285.
[5] [2000] HCA 45 at [35].
[6] At [39].
[7] (2000) 19 NSWCA 469.
Based on those authorities, Mr McMahon said that Ms McKinnon did not suffer an injury because the rupture of the implant was not a sudden pathophysiological change. He said that the medical evidence did not support Dr de Torres’ contention that there was bruising leading to capsular contraction. The MRI scan report did not identify any soft tissue change. In the absence of any clinical finding, it is not possible to find that Ms McKinnon suffered an injury.
Port Marina also disputes that Ms McKinnon suffered a secondary psychological condition on the basis that she did not suffer an injury. Mr McMahon said that Ms McKinnon’s contention that she did not recall any psychological issues in the past is not supported by a review of the evidence, noting that Ms McKinnon had previously sought treatment for insomnia and depression. Mr McMahon summarised the evidence with respect to Ms McKinnon’s conversations with her general practitioners and said that her contention that the condition developed as a result of pain and concerns about self-esteem was not supported by the notes. He said that notes supported the contention that the condition arose as a result of declinature of the claim. He said that a litigation neurosis was not compensable citing Bottle v Wieland Consumables Pty Ltd[8] and Stewart v NSW Police Service[9]. Mr McMahon said there was no medical evidence which linked Ms McKinnon’s psychological injury to issues of pain and concern about her appearance and self-esteem. He said there was no evidence to support a finding that any psychological treatment was reasonably necessary as a result of an injury.
[8] [1999] NSWCC 32.
[9] [1998] NSWCC 57.
Noting that the crux of the claim was the s 60 expenses relating to removal and replacement of the ruptured implant, Mr McMahon said that it was necessary to consider if the implant was an artificial member or aid as defined in s 59 of the 1987 Act, referring Thomas v Ferguson Transformers Pty Ltd[10] (Thomas) in which Hutley JA said that an artificial aid was an aid specifically tailored to the needs of a person, flowing from an injury so that the cost of a modified vehicle and driving lessons was compensable . Mr McMahon said that decision was applied by the Court of Appeal in Pacific National Pty Ltd v Baldachino[11] (Baldachino). Mr McMahon referred to the arbitral decision in Baldachino v Pacific National Pty Ltd[12] with respect to the definition of artificial member.
[10] [1979] 1 NSWLR 216, [220]-[221].
[11] (2018) 98 NSWLR 483.
[12] [2017] NSWWCC 239.
Mr McMahon submitted that a breast implant was not an artificial aid or member as defined for the purpose of Division 3 of Part 3 of the 1987 Act. He said that it was not part of an organ of the body but was a foreign object inserted for aesthetic purposes. It was not an artificial aid because it was not required to treat an injury.
Port Marina noted that Ms McKinnon had not quantified the costs of the proposed surgery. However it conceded that if I found that the rupture of the implant was an injury or arose as a result of an injury, there was no dispute that the surgery was reasonably necessary medical treatment.
With respect to weekly compensation, Mr McMahon said that Ms McKinnon’s statement showed that she worked for a week in October 2021. He said that the certificates of capacity did not provide an explanation why Ms McKinnon had no current work capacity. He noted a reference in some of the certificates to Ms McKinnon being a scaffolder but there is no evidence about her pre-injury employment so that the Commission is unable to make a determination about her capacity.

Reply submissions

Mr Young made written submissions in writing. He said that the case law relied on by Port Marina could be distinguished because Ms McKinnon’s left breast implant was not an artificial aid but had been part of her body for over 20 years. The damage to the implant was therefore a sudden or identifiable pathological change. Mr Young said that even if that was not so, Dr de Torres diagnosed a capsular contracture and provided a definition from Breastcancer.org. He said that the soft tissue that surrounded the implant was damaged which constituted a sudden or identifiable pathological change.
With respect to the secondary psychological condition, Mr Young said that the symptoms were not a “straight litigation neurosis” and that Dr de Torres acknowledged that the injury caused pain and damaged Ms McKinnon’s self-image.
Mr Young noted that there was no medical evidence to challenge Dr Wai’s certificates as to Ms McKinnon’s capacity.

FINDINGS AND REASONS

Port Marina sought to cast some doubt on the occurrence of the incident on 6 May 2021. The fact that Ms McKinnon fell on 6 May 2021 was not disputed in the s 78 notice and on that basis alone the submissions with respect to the occurrence of the incident can be disregarded. In any event, there is no evidence about the incident contrary to that of Ms McKinnon, who said that she fell while mopping a bathroom floor and suffered pain in her left breast.
Ms McKinnon said in her statement that she saw Dr Wai on the day of the injury. The clinical history on the MRI scan was that Ms McKinnon had fallen two weeks before, which is roughly consistent with an injury on 6 May 2021. Dr Wai recorded that Ms McKinnon had fallen a week before. I accept the date may be a typographical error and that the notes should be read in light of the comments by Basten JA in Mason v Demasi. His Honour said:[13]
[13] At [2].
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in
(c) the record did not identify any questions which may have elucidated replies
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
Ms McKinnon discussed a number of other conditions with Dr Wai, possibly as a result of a pre-arranged appointment. She gave a history of the injury and was referred for an ultrasound. The fact that Dr Wai noted the injury as occurring on a different day in the record of a consultation at which several issues were discussed does not necessarily cast doubt on Ms McKinnon’s statement. There is no evidence from Port Marina to suggest that the injury did not occur and the date was not placed in issue in the s 78 notice.
There is no reason not to accept that the injurious event occurred as Ms McKinnon said it did. Whether it was an injury as defined in s 4(a) of the 1987 Act falls to be considered in light of the authorities relied on by the parties and some others.
In North Coast Area Health Service v Felstead[14], Roche DP quoted from Petkoska and said:
“It follows that the description of a personal injury as ‘a sudden identifiable pathological change’ is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain. If the personal injury also aggravates a pre-existing disease, that does not mean it is no longer a personal injury.”
[14] [2011] NSWWCCPD 51.
In Military Rehabilitation and Compensation Commission v May[15] (May) the majority cited the statement quoted above from Petkoska and said:
“That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wallhttp:// - or a lesion to the brainhttp:// - . Each would be described as an ‘injury’ in the primary sense.
However, as the Full Court correctly heldhttp:// - , ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee's condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, suddenness is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd - and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.”
[15] [2016] HCA 19.
Gageler J who concurred with the majority said:
“More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to ‘getting hurt’ (an injury might be constituted by nothing more than ‘something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel’) but that suffering an injury involves something more than merely ‘becoming sick’. An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’. The universality of that explanation has been questioned, and the comment has fairly been made that ‘a distinct physiological change is not itself an expression of clear and definite meaning’. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.”
When Ms McKinnon saw Dr Wai she said that she had fallen and suffered left breast pain. Dr Wai did not see a bruise but queried a soft tissue injury. Dr Wai prescribed significant pain medication in the form of Endone and Targin specifically for the pain suffered in Ms McKinnon’s left breast. She referred Ms McKinnon for an ultrasound which showed a capsular rupture.
Dr Hodge recorded that Ms McKinnon felt pain and discomfort when she fell. Dr Hingston recorded that Ms McKinnon’s left breast was now larger.
Dr de Torres also recorded that Ms McKinnon felt pain and discomfort after the fall and that her left breast now felt hard, tight and continuously uncomfortable. On examination, there was contracture of the left breast upwards, which he accepted was a result of the incident. He said that she suffered traumatic rupture of the breast resulting in capsular contraction. Dr de Torres’ first report is brief. The questions he answered in his second report could have been better framed. I do not read his reports as being inconsistent. The MRI scan was said to show an intracapsular rupture of the implant. Dr de Torres said that an implant can sustain considerable blunt trauma but falling on a pointed edge can cause a rupture. In his answer to the second question he explained how that rupture occurred - as a result of bruising causing folding of the capsule which can lead to rupture.
Those reports all confirm that, based on the history Ms McKinnon provided of a fall on 6 May 2021, there were observable and identifiable physiological changes after the injury noted by the doctors who examined her, which could be described as a soft tissue injury to her breast. A rupture of the implant was revealed by an ultrasound and an MRI scan. Ms McKinnon’s complaints of pain in her breast were accepted by the doctors who saw her as being a result of the fall and the rupture.
I am satisfied that Ms McKinnon fell on 6 May 2021 which caused a soft tissue injury and resulted in the rupture of a breast implant. Because the implant was surrounded by a part of her body, damage to the implant necessarily resulted in a physiological change in the area around the implant, observed by the medical practitioners as swelling, inflammation and a contracture of the left breast upwards as a result of the rupture.
An examination of the circumstances of the cases on which Port Marina relies on the question of injury shows that they do not assist its case.
Storey was not a case about whether a worker suffered injury. The passage quoted in Mr McMahon’s submissions makes clear that it was accepted that the worker had suffered injuries to his head, cheeks and gums. Jordan CJ was considering whether the terms of s 10 of the 1926 Act allowed the worker to be compensated for damage to a broken denture. His Honour noted that the “incident which caused damage to his person also caused damage to something that did not form part of his person” and did not entitle him to compensation in respect of the denture. There is an obvious distinction between a denture which is designed to be removed and an implant which is surrounded by bodily tissue.
Castro, decided in 2000, concerned whether an episode of atrial fibrillation which occurred at work was an injury, in circumstances where the worker agreed in evidence that he was not under any particular stress at the time. Armitage CCJ said:
“It would appear that the authorities relied on … where the worker succeeded, therefore, were cases where the facts found indicated either a lesion or pathological change, internal or external, or death following a functional or physiological change not observable on post mortem. The present case, however, is analogous, I think, to the variation in high temperature during pneumonia example referred to by Rainbow J and Sholl J. It illustrates, I think, the ‘distinction, according to the common use of language, between getting hurt and becoming sick’ in the passage from Peart quoted by Kirby J in Zickar in 340 set out above. The applicant in this case became sick; he suffered the symptoms of atrial fibrillation without proceeding to myocardial infarction, in the view I have taken of the evidence. There is no doubt that for a period at least he became incapacitated for work as a result of those symptoms, and were his contraction of them an ‘injury’ within the meaning of the Act he would be entitled under s 33 of the Act to be compensated for the period of that incapacity. However, I do not consider that he suffered a ‘injury’ at all as that term is understood in the authorities ...
…
What [counsel] squarely asks me to find is that a temporary physiological change in the functioning (as distinct from the pathological state) of the applicant's heart is without more an ‘injury’. I do not think the authorities allow me to go that far.”
Ms McKinnon’s situation is quite different from that discussed in Castro because she fell, suffering injury, rather than becoming unwell while at work. The physiological change she suffered was not temporary.
Edkins also does not assist Port Marina’s case on the question of whether Ms McKinnon suffered an injury. Maguire CCJ determined that the deterioration of a prosthetic hip was not an injury in the context of a dispute between two employers as to which of them was liable to pay for a further hip replacement. His Honour referred briefly to Storey and said that the worker had not suffered a recent injury because it was an “artificial hip” which required replacement. Maguire CCJ found that the employer at the time of the original injury was liable for the cost of the further surgery. His Honour also said that s 74 of the 1987 Act (discussed below) had no application.

Treatment expenses

In the s 78 notice, Port Marina’s insurer denied compensation because Ms McKinnon suffered damage to an artificial member within the meaning of s 74 of the 1987 Act rather than a pathological change. In these proceedings, Mr McMahon submitted that the breast implant was not an artificial aid or member and that the proposed treatment fell outside s 60. Despite that contention, Mr McMahon conceded in submissions that the treatment did fall within s 60 if I found that Ms McKinnon suffered an injury.
The submission that the implant is not an artificial aid or member does not consider the definitions in s 59 of the 1987 Act in context.
Section 60 provides that if medical or related treatment, or other defined treatment is reasonably necessary as a result of an injury, then a worker’s employer is liable to pay the cost of that compensation in addition to other compensation for which it is liable. Ms McKinnon seeks payment for hospital treatment and medical and related treatment in that she seeks to undergo surgery for the removal of the implant which ruptured as a result of an injury. She seeks the provision of a new implant as recommended by Dr Hingston and Dr de Torres.
The definition of hospital treatment in s 59 reads:
“hospital treatment means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes—
(a) the maintenance of the worker as a patient at the hospital or rehabilitation centre,
(b) the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and
(c) any other ancillary service,
but does not include ambulance service.”
The definition of medical or related treatment reads:
“medical or related treatment includes—
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(c)(Repealed)
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1) domestic assistance services,
(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”

Port Marina seeks to submit, in effect, that the treatment sought is not medical or related treatment because the original implant was not an artificial aid or member because it was not provided for the purpose of treatment as a result of an injury. In effect it seeks to read the definition from the middle, rather than the beginning.
The starting point of the definition is medical treatment by a medical practitioner which is clearly encompassed by the definition. The following paragraphs include other forms of treatment in the definition. In the context of that definition, sub-s (d) ensures that the provision of items by persons who may not be medical practitioners are compensable under s 60.
Thomas, on which Port Marina relied, was a decision made under the 1926 Act when there was no provision equivalent to paragraph (g) of the definition of medical and related treatment. It was necessary for the Court of Appeal to consider the meaning of artificial aid to determine if vehicle modifications as result of an injury were compensable. Hutley JA said that an artificial aid was something specially constructed to enable the effects of the disability resulting from the injury to be overcome.
Several cases with respect to artificial members or aids have arisen as a result of the limits on payment of s 60 expenses imposed by s 59A. The time limits in s 59A do not apply to medical or related treatment which is “the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries.” The time limits otherwise prevent compensation for surgery which would fall within the definitions in s 59. In Baldachino the Court of Appeal upheld a Presidential decision of the Workers Compensation Commission to the effect that a knee replacement was an artificial aid within the meaning of s 59A(6)(a) of the 1987 Act.
Port Marina did not submit that any treatment should be limited to the removal of the ruptured implant without replacement. It could not make such a submission in the absence of medical evidence that removal of the implant without replacement was appropriate.
Ms McKinnon’s existing implant was clearly not an artificial aid or member intended to overcome the effects of an injury. That does not mean that surgery which involves the removal of a ruptured and painful implant recommended by a medical practitioner is not reasonably necessary medical treatment as a result of an injury to her breast. The new breast implant could be said to be an artificial aid to enable the effects of injury to be overcome. Mr McMahon conceded that a breast reconstruction as a result of injury would be compensable.
I am satisfied that the surgery to Ms McKinnon’s left breast proposed by Dr Hingston is reasonably necessary medical treatment as a result of the injury on 6 May 2021 and that the cost of the removal and replacement is payable under s 60.

Section 74

Mr McMahon did not make any submissions as to the effect of s 74 of the 1987 Act but it is relevant to mention the section because it formed the basis of the s 78 notice. The s 78 notice said that the breast implants were artificial members, that s 74 required that a worker had suffered an injury before the cost of damaging them was payable and denied that Ms McKinnon had suffered an injury to her breasts.
Section 74 is found in Division 5 of Part 2 of the 1987 Act which deals with compensation for property damage as a result of an accident arising out of or in the course of employment – not an injury. It is headed “Damage to artificial limbs etc” and provides that compensation for the cost of repairing or replacing damaged “crutches, artificial members, eyes or teeth, other artificial aids, or spectacles.” It is a separate head of compensation which would permit the compensation that was not payable in Storey.
In Edkins, Maguire CCJ noted that s 74 had no application to the deterioration of a hip replacement.
Section 74(2) provides that it does not affect liability for medical or related treatment. As Ms McKinnon requires surgical treatment as a result of an injury, it has no application to her claim.

Weekly compensation

Dr Wai has certified Ms McKinnon as having no current work capacity for the duration of the claim, since 31 August 2021. There is no medical evidence to the contrary and Dr Wai’s notes show that Ms McKinnon has taken strong painkilling medication for that time. There is no medical evidence that Ms McKinnon has current work capacity. Her pre-injury average weekly earnings were agreed at $1,098. The claim falls within the s 37 period and Ms McKinnon is not working so that she is entitled to an award of compensation at 80% of $1,098 which I calculate to be $878.40.
Mr McMahon made two submissions on the question of weekly compensation. First, he said that some of the medical certificates referred to Ms McKinnon’s job as being a scaffolder. Dr Wai’s notes for 28 October and 4 November 2021 record that Ms McKinnon alerted Dr Wai to the need to amend her job title because she was working as a cleaner at the time of her injury. The certificates after that date note her occupation as a cleaner and continue to provide that she has no current work capacity for any employment. The reference to other employment is irrelevant.
Second, Mr McMahon noted that Ms McKinnon said she worked for two weeks in October 2021 in a food processing place and left because she did not like the work. A review of the statement as a whole suggests the date of 2021 is probably an unfortunate typographical error. Ms McKinnon said that she was looking for work for an extended period and in the context of that evidence referred to the food processing job. She said that she received Centrelink benefits when she was unemployed. Ms McKinnon then said that she commenced working at the three cleaning jobs in February and March 2021. She said that she worked for only one week after the injury on 6 May 2021 and that she is currently in receipt of Centrelink benefits. Taking the evidence towards the end of the statement with the medical certificates confirms my understanding that the reference that Ms McKinnon has not worked since the date of the injury.

Secondary psychological injury

Ms McKinnon said that the delay in treatment and her uncertain future has caused her stress and anxiety and that she suffers a secondary psychological injury.
There is no medical report explaining the relationship between the injury and Ms McKinnon’s need for psychological treatment. There is no explanation why no such report was sought.
Dr Wai’s notes and the notes which are assumed to be from Ms Tomlinson contain a number of explanations for the need for treatment. The latter are undated and unsigned and it is not possible to discern when the consultations took place. They stress the claim and litigation process in the causation of Ms McKinnon’s symptoms as refer to delay in the preparation of her case.
The MHCPs do not contain any reference to the injury and the certificates of capacity do not mention a secondary psychological condition.
While I accept that Ms McKinnon’s injury may cause her distress, I am unable to find that she suffered a secondary psychological condition without medical evidence explaining the link.
I make an award for Port Marina on the claim with respect to a secondary psychological condition.

Conclusion

I find that Ms McKinnon suffered an injury on 6 May 2021 which caused the rupture of a left breast implant and make the orders which follow.
Pursuant to s 37 of the 1987 Act, Port Marina is to pay Ms McKinnon weekly compensation $878.40 from 31 August 2021 to date and continuing.
Port Marina is to pay Ms McKinnon’s s 60 expenses resulting from the injury to her left breast including the expenses of and incidental to the removal and replacement of the ruptured implant in her left breast.
Award for Port Marina on the claim with respect to a secondary psychological condition.

McKinnon v Port Marina Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established